Public Bill Committee

[Frank Cook in the Chair]

Clause 16

Release of prisoners after recall

David Hanson: I beg to move amendment No. 74, in clause 16, page 10, line 31, leave out subsection (2) and insert—
‘(2) After section 255 of that Act (recall of prisoners released early under section 246) insert—
“255A Further release after recall: introductory
(1) This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 (“the prisoner”).
(2) The prisoner is eligible to be considered for automatic release unless—
(a) he is an extended sentence prisoner or a specified offence prisoner; or
(b) he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2).
(3) If the prisoner is eligible to be considered for automatic release the Secretary of State must, on recalling him, consider whether he is suitable for automatic release.
(4) For this purpose “automatic release” means release at the end of the period of 28 days beginning with the date on which the prisoner is returned to prison.
(5) The person is suitable for automatic release only if the Secretary of State is satisfied that he will not present a risk of serious harm to members of the public if he is released at the end of that period.
(6) The prisoner must be dealt with—
(a) in accordance with section 255B if he is suitable for automatic release;
(b) in accordance with section 255C if he is eligible to be considered for automatic release but was not considered to be suitable for it;
(c) in accordance with section 255C if he is a specified offence prisoner;
(d) in accordance with section 255D if he is an extended sentence prisoner.
(7) The prisoner is an “extended sentence prisoner” if he is serving an extended sentence imposed under section 227 or 228 of this Act, section 58 of the Crime and Disorder Act 1998 or section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.
(8) The prisoner is a “specified offence prisoner” if (not being an extended sentence prisoner) he is serving a sentence imposed for a specified offence within the meaning of section 224.
(9) The Secretary of State may by order amend the number of days for the time being specified in subsection (4).
(10) In subsection (2) “term of imprisonment” means—
(a) in relation to a prisoner who is, or is to be treated as, serving a single term of imprisonment, that term;
(b) in relation to a prisoner serving two or more sentences of imprisonment (whether concurrently or consecutively), the aggregate of the periods that the prisoner is required—
(i) to serve in prison, or
(ii) to be on licence.
(11) In subsection (5) “serious harm” means death or serious personal injury, whether physical or psychological.
255B Automatic release
(1) A prisoner who is suitable for automatic release must—
(a) on his return to prison, be informed that he will be released under this subsection, and
(b) at the end of the 28 day period mentioned in section 255A(4) (or such other period as is specified for the purposes of that subsection), be released by the Secretary of State on licence under this Chapter (unless he has already been released under subsection (2)).
(2) The Secretary of State may, at any time after a prisoner who is suitable for automatic release is returned to prison, release him again on licence under this Chapter.
(3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison until the end of the period mentioned in subsection (1)(b).
(4) If a prisoner who is suitable for automatic release makes representations under section 254(2) before the end of that period, the Secretary of State must refer his case to the Board on the making of those representations.
(5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.
(6) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.
255C Specified offence prisoners and those not suitable for automatic release
(1) This section applies to a prisoner who—
(a) is a specified offence prisoner, or
(b) was eligible to be considered for automatic release but was not considered to be suitable for it.
(2) The Secretary of State may, at any time after the person is returned to prison, release him again on licence under this Chapter.
(3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison.
(4) The Secretary of State must refer to the Board the case of any person to whom this section applies—
(a) if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or
(b) if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time.
(5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.
(6) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.
(7) The Secretary of State may by order amend the number of days for the time being specified in subsection (4)(a).
255D Extended sentence prisoners
(1) The Secretary of State must refer to the Board the case of any extended sentence prisoner.
(2) Where on a reference under subsection (1) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.”’.

Frank Cook: With this it will be convenient to discuss the following: Amendment No. 13, in clause 16, page 10, line 43, at end insert
‘, subject to the agreement of a Crown Court judge’.
Amendment No. 138, in clause 16, page 11, line 23, at end insert—
‘(c) if the person is under the age of 18, at the date of his or her return to prison.’.
Amendment No. 14, in clause 16, page 11, leave out line 33 and 34.
Amendment No. 84, in clause 16, page 12, line 2, leave out first ‘is’ and insert ‘and the Board are’.
Amendment No. 139, in clause 16, page 12, line 12, at end insert—
‘(c) if the person is under the age of 18, at the date of his or her return to prison.’.
Amendment No. 85, in clause 16, page 12, leave out lines 22 and 23.
Government amendments Nos. 75 and 76.
Clause stand part.
Government amendment No. 77.

David Hanson: Welcome back for the afternoon sitting, Mr. Cook.
Government amendment No. 74 replicates the re-release provisions in clause 16 as it stands. In the light of the comments of the hon. and learned Member for Harborough, we tried to put them into a structure that would be easier for practitioners to understand. That is not the result of this morning’s discussion. None the less, I hope that the hon. and learned Member will accept that we are trying—perhaps very trying. We are doing our best.
The provisions, which essentially replicate those in the original clause, define three groups of determinate sentence prisoners for whom different re-release procedures following recall must apply. The first group is offenders who are serving a determinate sentence for offences that are neither violent nor of a sexual nature. We are attempting to ensure that if such prisoners, having been assessed as not presenting a risk of harm to the public, are recalled, that will be for a fixed period of up to 28 days, at which point they will automatically be re-released. That is a significant change from the current arrangements, but in my view it would ensure that recall would be not a punitive measure but a measure of protection for the public; it would ensure that the purpose of fixed term recalls is to remove offenders from often rapidly deteriorating situations, and place them in secure environments.
The probation service will have the opportunity to review the supervision arrangements and, if need be, apply for additional restrictions. The enforcement of the licence through recall also underlines, for the offender, the importance of future compliance. I reassure the Committee that if individuals who are recalled for up to 28 days go out into the community again and commit further offences or cause further difficulties while on licence, they will be returned to custody until, potentially, the end of the sentence, and not for a second fixed term period.
The second group is of determinate sentence prisoners who are serving a sentence for crimes of a sexual or violent nature, or who have been assessed as unsuitable for automatic re-release because they present a risk of serious harm, or, indeed, have already served one fixed term recall and as a result are no longer eligible for automatic re-release. The provisions allow for such prisoners to be re-released through two possible routes. In the first, the Secretary of State has discretion to examine the case and determine whether re-release should occur; that involves determining that the offender is safe to release. The decision will be taken by the Secretary of State on the basis of up-to-date risk assessments provided by probation staff. If the Secretary of State is not satisfied on the matter, there is the option, as there is now, of the Parole Board. The case of any recall prisoner who remains in custody for 28 days must be referred to the Parole Board. If neither the Secretary of State nor the Parole Board is satisfied that it is safe to re-release the prisoner, he must accordingly remain in custody.
The third and final category in the amendment, which also replicates the original clause, is of those sexual or violent offenders who are serving extended sentences. Such prisoners will be re-released only if the Parole Board recommends it. If the board does not consider it safe to re-release them following their recall they can potentially be held until the end of their sentence.
We are trying to demonstrate swift and effective enforcement of licence conditions. The figures on enforcement of licence conditions following breaches of licence show 33 per cent. enforcement in 1997, rising to 91 per cent. in 2006. We need to manage that in connection with the prison population. The proposals strike a balance between public protection and ensuring that licence conditions are met. Government amendments Nos. 75 to 77 are consequential upon the main amendment.
That leads me to the Opposition amendments tabled by the hon. and learned Member for Harborough. In my view, amendment No. 13 would produce a further step before recall takes place in requiring prisoners recalled for a fixed term to be referred to the Crown Court before they can be re-released. That measure is potentially slow and cumbersome and would add very little to the process. I will be grateful to hear the hon. and learned Gentleman’s reasons for that amendment, but if it is designed to enhance public protection, I reiterate that prisoners serving sentences for sexual and violent offences are automatically precluded from being given fixed term recall and that prisoners eligible for fixed term recall will be subject to the risk assessment conducted by probation staff that I mentioned earlier. I believe that the probation service is well placed to assess the level of risk presented by an offender and that it will do a sound job in that regard. The Secretary of State will also have considerable powers to examine in detail any assessment showing whether the offender presents a further risk to the community. I believe that there are adequate safeguards in place to ensure public protection. It is not in our interests to put public safety at risk.
Amendments Nos. 138 and 139 would remove the power of the Secretary of State to re-release a young offender following recall. I recognise that the provision to re-release recalled prisoners using Executive powers as opposed to going through the Parole Board is a departure from existing practice. However, as I have already mentioned, we are keen to refocus the board’s energies to considering the release and recall of the most dangerous offenders in the system—those who serve long terms for sexual and violent offences. In that way, it can provide a most useful service in protecting the public.
Amendment No. 14 would deny the Committee, the House and the Government the opportunity to amend the number of days that an offender serves on recall, other than by amending the Act through further primary legislation. Similarly, amendment No. 85 would remove the associated order-making power in new section 254A(7) of the Criminal Justice Act 2003.
The introduction of fixed term recall provisions is a new initiative. We trailed it in our paper published on the first day of the Ministry of Justice, 9 May. As with other provisions, it has the support of not only the previous Lord Chancellor, but the present Lord Chancellor, my right hon. Friend the Member for Blackburn (Mr. Straw).

David Heath: May I test the Minister on one aspect of legislation within his Department? He refers to the Lord Chancellor, who is the Secretary of State for Justice. However, the legislation refers to “the Secretary of State”, which, as we know is an interchangeable term between any Secretary of State and could therefore put this very important power within the compass of the Secretary of State for the Home Department. That would place the matter in the executive arm rather than in the Department of Justice. I wonder why the term Lord Chancellor, which is still a statutory position that separates its holder from the run-of-the-mill Secretaries of State, has not been used in this legislation.

David Hanson: That is an interesting probing point. In terms of Pepper v. Hart, I will make some policy on the hoof and say that, for these purposes, the Secretary of State is the Secretary of State for Justice and Lord Chancellor. In the event that I find that that is incorrect, I will write to the hon. Gentleman. That seems to me to be relatively clear in the circumstances.
I hope that with that point and the hon. Gentleman’s ever helpful smiling contributions—I think that today’s score is about 2-all—I commend the revised Government amendment to the Committee. I urge the hon. and learned Member for Harborough not to press his amendments.

Frank Cook: Monsieur Garnier.

Edward Garnier: Sacre bleu, nom d’un nom, merci beaucoup.
Thank you very much indeed, Mr. Cook, for inviting me to contribute to the debate on clause 16. I shall leave it to the hon. Member for Somerton and Frome to deal with amendments Nos. 138 and 139, which deal with the point about which he spoke this morning—the age of the persons subject to recall. I shall concentrate briefly on our amendments Nos. 13, 14, 84 and 85, which fit into two sets.
One set deals with the power of the Secretary of State to make orders amending the number of days for the time specified in particular new subsections. Amendment No. 14 deals with the number of days that come under what was, until the Minister moved his amendment, the provisions on pages 11 and 12 of the Bill. About 40 pages of new amendments were tabled by the Government at the end of last week, so, not for the first time, they have come forward with a complete rewrite of the guts of clause 16. If we read the clause alongside the amendment paper, we would see a completely different animal.
Although my amendments do not now tag on in the same way to the latest set of Government amendments to clause 16, they allow us to discuss the powers of the Secretary of State. A moment ago, we heard the Minister claim reasons of administrative efficiency—he said that if the Conservative amendment were made, each time that we wanted to change the number of days we would have to amend the primary legislation. Well, there is nothing much to worry about if we have to get the Government to come back to Parliament to ask for permission to do things.

David Hanson: The hon. and learned Gentleman will know of the affirmative procedure. Any change made by the Secretary of State in the number of days would have to come before both Houses of Parliament anyway.

Edward Garnier: I do know that, but it does not alter the fact that I find the giving of powers to the Executive—the handing away from Parliament of the ability to control in an effective way a Secretary of State—something difficult to live with. Given the great avalanche of legislation that is coming through, of course we understand that if we did not give the Secretary of State, of whichever Department, the power to amend primary legislation, we would be stuck dealing with statutory instruments or special debates on matters as detailed as adjusting the number of days that the Secretary of State, or rather the statute as the Bill will be by then, would apply to a recalled defendant.
As a matter of principle, we should not always nod through such matters. In too many cases, we have seen the Secretary of State taking unto himself powers to alter primary legislation. The affirmative procedure is better than nothing. I cannot remember whether the right hon. Gentleman has ever been in the Whips Office.

David Hanson: I have been.

Edward Garnier: They know their trade. If the Minister is trying to persuade us that the affirmative procedure is an effective way of holding the Government to account, he is still wearing his Whip’s hat and he ought to get out more. I assure him that there is no better way of getting what he wants by bundling something upstairs with a short Committee process, particularly towards Christmas as hon. Members are busy concerning themselves over all sorts of other things but the matter in hand.
I do not need to expand on the argument; I have made my point and I think that old subsection (7) and old subsection (10) are just another set of examples of where we are losing control of the Executive and the Executive must be kept in check.
Through amendment No. 13, I want to add to clause 16 as previously drafted the requirement that a Crown court judge should agree before someone is released, not before he is recalled. In a sense this is a slightly fruitless conversation because what I am arguing about will no longer be part of the Bill if the Government have their way and their amendment No. 74 is made. However, let us struggle on and see how we go.
Proposed new section 254A(2) of the Criminal Justice Act 2003 states:
“If the Secretary of State is satisfied, on recalling a person to whom this section applies, that the person will not present a risk of serious harm to the public if he is released at the end of the period of 28 days beginning with the date on which he is returned to prison, then subsection (4) applies.”
Amendment No. 13 would insert at the end of that subsection:
“subject to the agreement of a Crown court judge.”
I am after some form of judicial input, so that it is not the Secretary of State—not a politician or the Executive—who is deciding when a recalled prisoner should be released. There should be something outside Government dealing with matters of this sort. That is precisely why in my amendment I include the board—the Parole Board—in relation to proposed new section 254B(3) of the Criminal Justice Act 2003, such that the section would read: “The Secretary of State must not release a person under subsection (2) unless the Secretary of State and the Board are satisfied that it is not necessary for the protection of the public that he should remain in prison.”
I am not trying to stop the release of people whom it is appropriate to release or to prevent the Secretary of State and the judicial system from recalling for periods limited to 28 days those who have committed breaches, because I can see that there is good sense in setting a short return period for those who committed breaches while on licence. What I do think is important—this is a constitutional point as much as a point of detail relating to the Bill—is that Secretaries of State should not have a direct say on whether somebody should be released or not, whether they are Secretaries of State in the ordinary sense of that term or whether we are using the term interchangeably just because the Lord Chancellor happens to be the Secretary of State for Justice. It should be either the Parole Board or some quasi-judicial or judicial input that makes the decision. 
As I said earlier, this is a slightly unreal discussion because my amendments relate to a provision that the Government are not satisfied with themselves. They have taken it out and put in two and a half pages of their own revisions under Government amendment No. 74.
I will finish by making one or two general remarks about the 28-day automatic recall period. I think that that is sensible, based on the experience of the state of New York. The recall rules there have been changed in respect of people on parole who have committed minor acts of misconduct—they might have had a row with their neighbour in the next-door flat, or there has been a minor altercation over a parking space but it did not lead to anything of a serious criminal nature. Under the old rules in the state of New York, if reported to the police, those people were automatically recalled to continue to serve their life sentence in custody, and the prisons were becoming full of people who were perfectly safe but had had one minor loss of temper, which led to the recall. We do not need that. My understanding is the position in New York is that the behaviour of paroled prisoners on licence has improved markedly. The prisons run more efficiently and humanely as a consequence of not having a lot of people who are recalled for minor breaches.
If we accept the deal that people should be recalled only when necessary and if there is a limited 28-day period subject to all the safeguards so that if the man—I say man because it usually is a man—is a danger to the public, he will have to serve out a far longer period on recall, I would ask the Government to do me the deal of allowing the release from recall to have a far greater judicial input, and not to be a decision made by the Secretary of State.
We need clarification. This is not a flippant point—it arises from the intervention by the hon. Member for Somerton and Frome about the office of Secretary of State. Under the Constitutional Reform Act 2005, which attempted to do away with the office of Lord Chancellor, and the guarantee that was negotiated between the then Lord Chancellor Lord Falconer, and the then Lord Chief Justice, Lord Woolf, the holder of the office of Lord Chancellor is statutorily required to maintain and safeguard the independence of the judiciary.
Unfortunately, the Lord Chancellor is also the Secretary of State for Justice. Wearing that hat, he has a big spending budget and huge budgetary restraints are rained down upon him. Every time that we have a discussion about prison accommodation or capacity, that fact becomes increasingly apparent. However, at the same time, that same individual office holder has to protect the independence of the judiciary, and through various forms of semaphore and direct speech, the judges are being told to be careful about sending people to prison because the prisons are full.
I do not care what the right hon. Member for Blackburn calls himself, either in front of his shaving mirror or when addressing his Ministers. I know, because I have teased him about it, that he rather enjoys being called not only Lord Chancellor, but Lord High Chancellor. He loves wearing the official state robes. I do not deny him the joy of wearing those robes—perhaps one day not too far away they will be worn by a Conservative. There is another debate to be had about the importance of uniforms and the separation of the individual and the office holder. However, whether the current Secretary of State for Justice and Lord High Chancellor enjoys being called this, that or the other does not matter. What is essential, is that he separates in his mind his role as a spending political Minister, and his role as the protector of the independence of the judiciary. It is possible to do that, and it is essential that he does it under the current regime. However, it is increasingly difficult for the public to have confidence that he is doing it if, at the same time as being the Secretary of State who deals with prisoners on recall and releases them after 28 days to ease prison capacity problems, he does something that I suggest should more properly be done by the judiciary—controlling the sentencing and sentence plan of those who have been sentenced by the courts.
That will do for now, I think. I look forward to hearing from others who have something to contribute.

David Heath: It was perhaps a mistake for me to have intervened, as it enabled the hon. and learned Member for Harborough to say most of what I was intending to say on the subject of the persona of the Lord High Chancellor. It is an important distinction. When we allow the Executive quasi-judicial powers, we must be careful and clear what we are talking about. There are some responsibilities of the Secretary of State for Justice in his capacity as Lord Chancellor which are inalienable, and which should not be available to other Secretaries of State. I say that simply because there is a statutory duty on the Lord Chancellor, and on his position as set out in the Constitutional Reform Act 2005.
This is a good example of one of those matters that should rest not with a common-or-garden Secretary of State, but with one who is charged with maintaining the interests of justice, and that is the role of the Lord Chancellor. It so happens that the Secretary of State and the Lord Chancellor are the same person, and that is fine. I do not have a problem with that. In legislation, however, it is helpful to make that distinction. Although my interjection may have appeared to be a debating point, it was slightly more serious. Where we intend the Secretary of State for Justice to take on a quasi-judicial role, it is helpful to specify the Lord Chancellor in statute for those purposes, so that we have no confusion and to remind everyone of the responsibilities involved.
I would like to say a few words about amendments Nos. 138 and 139, which stand in my name and that of my hon. Friend the Member for Cambridge and which have been subscribed to by the Conservatives. They brings us back to the issue of how we treat children and people under the age of 18.
In his opening remarks, the Minister said that he wanted the Parole Board to concentrate on the most difficult cases, where there was concern for public safety. I suggest is another area in which the Parole Board can be usefully engaged—where the person under recall is a vulnerable person himself. I suggest that young people fall into that category. This morning, we had a consensual discussion on the needs of young people within the penal system and our desire to keep as many as possible out of our prisons. One would assume from that that it is necessary to stop them returning to prison, as far as possible. If that is the case, having the assessment by the Parole Board seems to be a useful safeguard that would ensure that young people were not incarcerated additionally any more than is absolutely necessary for the purposes of the operation of the clause.
I am pleading a special case for the young person. The existing arrangements work reasonably well with regard to young people. I see why the Government are proposing the clause and do not argue against it as a whole, but I am saying that young people are a special case and asking the Minister to at least consider the possibility of pursuing the issue at a later stage.

David Hanson: I thank the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome for their support for the principle of fixed term recall. I am grateful, because I expected some political discussion around those issues, and I appreciate that they have made a judgment on that. The experiences in New York that the hon. and learned Gentleman described are apt.
With had that element of consensus, we have discussed the amendments before the Committee. The hon. and learned Gentleman raised the possibility of some form of judicial oversight or involvement in the decision-making process, rather than simply leaving it to the Secretary of State. The reason that we have not taken that route is simply one of scale and scope with regard to the determinations to date. I estimate the number of fixed term recalls that can be expected to happen in any one year to be approximately 4,500.
If I were to accept the amendment tabled by the hon. and learned Gentleman, those 4,500 cases might well have to go through the judicial process, which would add a significant burden to the work of the courts. During the discussions that we have had to date on this subject, I believe it has been shown that, regarding the cases that we have addressed—those of sexual or violent offenders—the Secretary of State has the ability to exercise discretion accordingly.

Edward Garnier: If the Minister is going to have 4,500 people recalled for up to 28 days during a given year, does he anticipate that they will be recalled into category B, category C or category D prisons, or a mixture of all three? How will he make that assessment? Will the decision be made simply on the basis of the spaces available, on the basis of the original crime, or on the basis of the conduct that led to the 28-day recall?

David Hanson: We have to make risk assessments on all those matters, which are dependent on the reason for the recall, the activities involved and the advice that we receive in the first place about the level of risk in relation to the prisoner and the recall. So, there would be a range of mechanisms whereby individuals could be recalled to a range of prisons, based on the risk assessment that was undertaken at the time.
The hon. and learned Gentleman’s amendment seeks to have judicial involvement in that process of risk assessment. I suggest that that would place a significant burden on the courts, which the proposals before the Committee would avoid while still giving protection to the public, as there is a risk assessment of different categories of prisoner on recall. That would apply even within the first 28-day recall option for prisoners and on a second recall. There are opportunities for consideration accordingly.
The issue of parliamentary oversight and the delegation of powers to the Secretary of State is important. I value, as any Member of Parliament would, the rights of Parliament. For goodness’ sake, I spent five years in opposition—that is not as long as you spent in opposition in another role, Mr. Cook. Therefore, I know how important it is to have parliamentary oversight of the Executive, having spent a lot of time trying to secure that.
Proposals for a change to the amount of time on a recall would be subject to the affirmative procedure. I accept that I am a former Government Whip—in fact, I am the Whip who lost the former Member for Caerphilly during his sojourn, so my whipping credentials might not be that strong. Nevertheless, as a former Whip, I appreciate that there will still be debates in this House and in another place under the affirmative procedure. In those debates, I could not take for granted the votes of my right hon. and hon. Friends, and I certainly could not take for granted the votes of Members of another place. In another place, my party—and, indeed, the party of the hon. and learned Member for Harborough, were it to form a Government—would not have an overall majority. There are parliamentary and legislative safeguards with regard to this matter, and I hope that the hon. and learned Gentleman will be reassured by them.
Amendments Nos. 138 and 139 would remove the power of the Secretary of State to re-release following recall a young offender who had either been deemed unsuitable for a fixed term recall, or who was ineligible for such a recall because he was serving a sentence for a specified offence. Once again, I will reflect on what the hon. Member for Somerton and Frome has said, but I will also reflect on what I have said to the Committee to date, which is that the purpose of these provisions is to help to refocus the Parole Board on what I believe it should be doing: looking at the parole needs of serious, dangerous, violent and sexual offenders, and considering the recall of the most dangerous offenders in the system. It is important that the Parole Board focuses on those issues, because, in my view—the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston, who deals with many of these matters, would agree—the Parole Board is heavily burdened at the moment by a lot of work that could be done elsewhere just as effectively, efficiently and appropriately.
I hope that the Opposition amendments will not be pressed and that, given the consensus on the broad thrust of the new clause, which is essentially the old clause made simpler, there will be common acceptance by the Committee of the need for the changes on recall.

Amendment agreed to.

Amendments made: No. 75, in clause 16, page 12, line 38, leave out ‘254A(7), 254B(4) or 254C(2)’ and insert ‘255B(4), 255C(4) or 255D(1)’.
No. 76, in clause 16, page 12, leave out lines 43 and 44 and insert—
‘“ section 255A(9),
section 255C(7),”.’.—[Mr. Hanson.]

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17

Further review and release of prisoners after recall

Amendment made: No. 77, in clause 17, page 13, line 8, at end insert—
‘( ) In consequence of the amendments made by section 16 and this section, the heading to section 256 becomes “Review by the Board”.’.—[Mr. Hanson.]

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18

Recall of life prisoners: abolition of requirement for recommendation by Parole Board

Edward Garnier: I beg to move amendment No. 86, in clause 18, page 13, line 30, after ‘may,’, insert
‘with the approval of the Lord Chief Justice or a judge designated by him,’.
The amendment would mean that the provision in subsection (2) would state that the Secretary of State may, with the approval of the Lord Chief Justice or a judge designated by him, in the case of any life prisoner who has been released on licence, revoke his licence and recall him to prison.
The heading of clause 18—“Recall of life prisoners: abolition of requirement for recommendation by Parole Board”—seems to stand in contradistinction to clause 17, through which the Secretary of State appears to be bending over backwards to refer matters to the Parole Board. He seems to be going the other way with clause 18 and taking away from the Parole Board any power to intervene in these matters. I am not going to detain the Committee long on this amendment because my argument broadly mirrors those that I made about the constitutional propriety of allowing the Secretary of State to do things within the sentencing system that should more properly be done by independent judges or the Parole Board.
I understand the Minister’s point about the work of the Parole Board. We all know that it has had its budget slashed so that it has had to cut back on face-to-face interviews in prisons with offenders wishing to apply for release following consideration of their cases by the board. We all know that the number of cases that it has to deal with on paper only is growing. Although, to some extent, the Government have reversed the mistake that they made in taking away the resources that allowed the Parole Board to have more face-to-face interviews, the position is still pretty parlous. However, all of those inefficiencies and mistakes do not permit the Government to take unto their own hands the power that they wish to have under clause 18.
As I said, I draw a comparison between clauses 17 and 18 because the influences seem to be going in different directions. Under clause 16, the Secretary of State wants not only to decide for himself what goes on, but to have the power to change the number of days of the automatic recall. I think that the arguments have been adequately described both now and on another occasion. I hope that the Minister can satisfy me that this clause, if it is not amended, is a good one.

David Heath: I rise briefly to agree entirely with the arguments made by the hon. and learned Gentleman. The Minister said earlier that he wanted the Parole Board to concentrate on the most serious cases. Well, this is the most serious case in terms of a restriction in liberty. This is the revocation of a licence given to a person under an indeterminate sentence. It should have at least a degree of judicial oversight. I believe that a judge should take the decision, but I am prepared to accept a decision taken by the Lord Chancellor in conjunction with a judge. I find it difficult to accept purely a decision of the Executive effectively to deprive a person of his liberty, sine die, on grounds given by an elected Minister, rather than through a judicial process. I thus support the view expressed by the hon. and learned Gentleman.

David Hanson: Again, I hope that there is an element of commonality between both Front Benches in the sense that I, too, want to ensure that the decisions taken are correct and proper, and that a potential offender who will lose their liberty has the right to have their case reviewed later. Under the clause, all recalled offenders are entitled to be notified of the reasons for their recall and to see material on which that recall decision is based. Their case will also be referred to the independent Parole Board so that the recall can be reviewed, and the Parole Board has the power to direct that such prisoners are immediately re-released.
The question arising from the amendment is whether a Lord Chief Justice, or a judge appointed by him, should authorise the recall of life-sentence prisoners before that process occurs. In my opinion—I accept that it is only my judgment—the possibility for that judicial oversight before the recall occurs would cause delay and, perhaps, some great difficulties in managing the system. It could also put the public at risk.

Edward Garnier: I would not prevent a potential offender from being arrested and held in custody while the matter was considered, but something more than simply the Secretary of State’s signature is needed. We should bear in mind that the relevant person will not actually be the Secretary of State. As in the old Home Office days, a designated Minister in the Department will have responsibility for this aspect of implementation. He or she will be advised by a host of lawyers and civil servants, so the decision will be made deep in the recesses of bureaucracy. The Minister will have to stand up and defend this in Parliament if things go wrong, but this will be very much a bureaucratic and administrative decision. We are moving the criminal justice system further and further away from judicial oversight or involvement.

David Hanson: This might not be the hon. and learned Gentleman’s intention, but I should be very interested to know the basis on which a prisoner could be recalled and held in custody while waiting for a judge to authorise that recall in the scenario that he describes. We need to look at those issues, but he says that the recall could be authorised, and an individual could be taken off the streets, because they were a risk or had broken the terms of their licence, and that they could be put in a police cell to await the sitting of a High Court judge or the Lord Chief Justice to authorise that recall to prison.
Under our current proposals, that recall can occur. It is immediate. It removes the offender from whatever place of safety they may be in, for the good of either the public or themselves, and may relate to any offences that they might have committed. It allows Parole Board oversight of the decision subsequently.
The hon. and learned Gentleman’s amendment would include a provision, which may be helpful or not, for the judiciary to examine the relevant issues. However, such a procedure would be bureaucratic, slow and may involve the judiciary having to sit at evenings, weekends or different times of the week to have oversight to ensure that those recalls occur—and recalls are often undertaken speedily. For those reasons, I am happy to reflect on judicial involvement, because we can always have discussions about such matters, but I am satisfied that there is sufficient public safeguard for the public and the judicial system in having the decision about the potentially recalled offender overseen by the Parole Board, post recall occurring.

David Heath: Perhaps the Minister will remind the Committee what the situation is now and whether the slowness or the bureaucratic nature of the process has been regularly brought to his attention or to that of the House. I am not aware that that has been a problem.

David Hanson: My point is that, under amendment No. 86, tabled by the hon. and learned Member for Harborough, the Lord Chief Justice or a judge appointed by the Secretary of State, would be required to authorise the recall of life sentence prisoners.

David Heath: At the moment, it is a Parole Board recommendation: first the person is arrested, then there is a recommendation from the Parole Board to the Secretary of State, who makes a decision. It is hard to see that there would be an extended process beyond what currently happens.

David Hanson: Most recalls are already undertaken using emergency powers. My assessment—again, this a matter of judgment—is that the proposal for the Lord Chief Justice or a judge appointed to authorise the recall of life sentence prisoners would inevitably mean delay and additional work for the courts and, potentially, no swift return of dangerous, violent prisoners to complete their sentences if their behaviour caused concern. I am making that judgment and simply saying to the Committee that safeguards are in place. On that basis, I ask the hon. and learned Gentleman to ask leave to withdraw his amendment.

Edward Garnier: I shall put the Minister out of his misery: I will ask the Committee’s leave to withdraw my amendment, but I want to ask him a question. First, he reckons that we are talking about some 4,500 likely offenders a year being recalled for breaching their licences, which is fewer than the number who apply to the Parole Board for early release from prison on licence.
Secondly, judges like to get a good night’s sleep, just like anybody else, but I assure the Minister that judges are available 24 hours a day, in the criminal and civil jurisdictions, to deal with cases that need to be dealt with immediately as a matter of urgency. They can be got out of bed, contacted via the telephone and got off the golf course, if necessary, to reach a decision that they have to take, so we need not worry too much about their being disturbed in that sense. However, we do need to worry about Ministers encroaching on the powers of the criminal justice system beyond their constitutional rights as elected Ministers. Although we do not have a formal constitution—our constitution is not written in one document, but in lots of different places and in various conventions, and so forth—we understand the separation of powers.
I accept that, very often, for reasons of convenience, be it administrative, executive or otherwise, the boundaries between the Executive and the judiciary and the legislature are blurred. However, every now and then we ought to recognise that those separations exist for a purpose: to protect us, to enhance the rule of law and to control the Government, otherwise we are wasting our time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.

Edward Garnier: On a point of order, Mr. Cook. I want to make a suggestion now so that you have a while to consider it before reaching a decision. Government new clause 29 appears on the amendment paper for consideration under clause 26. However, new clause 28, which deals with the powers of the Court of Appeal criminal division, is not grouped with amendments under clause 26. Presumably, it will be dealt with separately after clause 129 as one of the new clauses listed on page 3 of the amendment paper. It is entirely a matter for you, Mr. Cook, but you might find it more convenient to have the new clause 28 debate, which fits in with clause 26, when we discuss that clause rather than at the end. I simply make that suggestion and invite your opinion on it in due course.

Frank Cook: That is a fair point. Thank you for that guidance. Bearing in mind the progress that we have not made today, that might be a question for another Chairman at our next sitting. The much more realistic point is that we could do what the hon. and learned Gentleman requests if the Committee were of a mind to agree to it, but at the moment it is questionable whether the Minister has papers prepared that far forward. We do not need to come to that proposal yet, just to be aware that it may transpire.

Clause 21

Referral orders: referral conditions

David Hanson: I beg to move amendment No. 21, in clause 21, page 16, line 19, leave out from ‘been’ to ‘but’ in line 21 and insert
‘dealt with by such a court for any offence other than the offence and any connected offence on only one previous occasion’.

Frank Cook: With this it will be convenient to discuss the following amendments:
No. 140, in clause 21, page 16, line 19, leave out
‘of only one offence other than the’
and insert
‘on only one occasion for an’.
No. 141, in clause 21, page 16, line 21, leave out from ‘offence’ to end of line 22 and insert ‘; or
(iii) if they have previously been referred to a youth offender panel under section 16 above, a further referral has been recommended by—
(a) a member of a youth offending team,
(b) an officer of a local probation team, or
(c) a social worker of a local authority.’.

David Hanson: I hope this will not take too long, Mr. Cook. The amendment tabled by the hon. and learned Member for Harborough has ably anticipated mine. I hope that Government amendment No. 21 provides the clarification that his amendment seeks, namely that an offender may be given a referral order if he has previously been convicted on one occasion. It is the case that offenders are often convicted on one occasion for more than one offence and we do not wish to rule out such cases. I hope that there will be agreement across the Committee to the amendment.

David Burrowes: I am grateful for the Minister’s acknowledgement of our foresight and diligence in tabling the amendment, which has been followed dutifully by the Government, as in other policy areas. I do not wish to split hairs on amendments Nos. 21 and 140, which are very similar, and although ours is clearer and simpler, I would not wish to divide the Committee on the words.
Amendment No. 141 takes things a stage further. It does not deal just with the issue that was the subject of the previous amendments in allowing the flexibility and extension of referral orders to cover those cases when a defendant has been convicted on a previous occasion. We seek to allow a situation where, with a defendant who has had a referral order made against him in respect of a previous conviction, the court is enabled to decide in the particular circumstances whether to extend a further referral order. That often occurs in the youth courts where, sadly, referral orders are sometimes not implemented for weeks or months after the first visit with the youth offending team outside court and the defendant can commit another offence and come back before the court. The court is often proscribed from allowing a further referral order to be imposed even though the intent behind the order might work.
There are cases where it would be thoroughly inappropriate to impose another referral order: the defendant has had their chance to be diverted away from the criminal justice system and they should not have an additional opportunity, but there are instances where a defendant has committed another minor offence or one unrelated to the original one that was subject to the referral order.
Maybe there are circumstances where the referral order has not had its true impact on the defendant for reasons that may not be their fault, where it should be open to the court to have the flexibility to impose an additional referral order or, indeed, an extension. Amendment No. 141 seeks to provide for that and allow the insertion of an extra subsection to say that:
“(iii) if they have previously been referred to a youth offender panel under section 16 above, a further referral has been recommended by—
(a) a member of a youth offending team,
(b) an officer of a local probation team, or
(c) a social worker of a local authority.”
In those circumstances, given the intention in the clause to extend the flexibility and applicability of referral orders, I would like to move amendment No. 141.

David Hanson: Amendment No. 141 would allow, as the hon. Member for Enfield, Southgate has just indicated, the award of a second referral order, if that has been recommended by the youth offending team, an officer of the probation team, or a social worker from a local authority.
I do not wish to see referral orders used for a second time, for reasons that I shall outline to him. If a young person has reoffended, they have failed the referral process and not taken the opportunity that has been given to them to correct their behaviour at the first referral order. The referral order principle works on the basis of restorative justice, with the offender being made to face up to the effect that their offence has on others, taking responsibility for their actions, and making restoration to their victims. We have deliberately designed the sentence to be targeted at those who receive a court sentence for the first time, where they plead guilty. Pleading guilty demonstrates an acknowledgement of the events and is an indicator that the young person is suitable for the restorative justice approach, in terms of facing up to their offences and talking to their victims.
We are extending the referral order to be available on second conviction, if not used previously, because those people have not had the opportunity to undergo the referral process. I must say to the hon. Gentleman that the purpose of the youth rehabilitation order that we have put in place is, under the terms of the Bill, the next stage in relation to a failed referral order, and I ask him to reflect on that and to withdraw his amendments, and I ask the Committee to accept the Government amendment.

David Burrowes: I ask the Minister to reflect on the particular instance where, in a sense, the referral order has not failed, albeit that the defendant has committed a further offence.
I can think of a number of circumstances where the referral order has not had any real impact beyond the first meeting at court, there has been no real implementation and the restorative appointments have not taken place. In a sense, the failure of the order has not necessarily been the fault of the defendant, when it is subject to the recommendation of the very people who perhaps know best: the youth offending team, the local probation team or a social worker. The point of the amendment was to allow flexibility to the court, so I would like the Minister to consider such exceptional examples where a referral order before the court has not necessarily totally failed, because it has not really started. The amendment would allow flexibility in those circumstances even though a further offence has been committed.
Given that the Minister is willing, by implication, within the clause, to give a second opportunity to those who have previously been convicted to be diverted from the system, the amendment could extend a second opportunity to those in respect of whom the referral order has not had its full impact. I do not wish to press the amendment to a vote, but ask the Minister to reflect on the matter.

Frank Cook: That amendment has not been moved formally.

David Burrowes: On a point of order, Mr. Cook. I recall formally moving the amendment.

Frank Cook: No, the debate was on Government amendment No. 21 and we were considering the amendments Nos. 140 and 141 incidentally.

Amendment agreed to.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss the following: New clause 7—Sentencing of young offenders—
‘(1) Section 16 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (duty and power to refer certain young offenders to youth offender panels) is amended as follows.
(2) Omit subsection (2).
(3) In subsection (6) omit “(2) or”.
(4) In consequence of the amendments made by this section, the heading to section 16 becomes “Power to refer certain young offenders to youth offender panels”.
(5) Section 17 of that Act (the referral conditions) is amended as follows.
(6) In subsection (1)—
(a) for “16(2)” substitute “16(3)”, and
(b) for “compulsory” substitute “discretionary”.
(7) In subsection (1A) after “conditions”, insert “also”.
(8) In subsection (3)—
(a) omit “the compulsory referral conditions or”, and
(b) for “16(2) or (3) above (as the case may be)” substitute “16(3) above”.
(9) In section 19 of that Act (making of referral orders: effect on court’s other sentencing powers) omit subsection (7).’.
New clause 15—Extension of a referral order—
‘(1) Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
(2) In paragraph 5(1) for “power” substitute “powers”.
(3) For paragraph 5(2) substitute—
“(2) Those powers are the powers to revoke the referral order (or each of the referral orders) or extend it by up to 3 months.”.
(4) In paragraph 5(5) for “so dealing with the offender” substitute “revoking an order for an offence specified in sub-paragraph (4).”.
(5) In paragraph 5(6) after “The appropriate court may not exercise the” insert “revocation”.’.

David Burrowes: The intent of the referral orders is primarily to divert young offenders from the criminal justice system and that is welcome. If they are fully implemented and funded, including all of the restorative elements and the whole package, they will work. Moving young offenders away from the criminal justice system must be to everyone’s benefit.
There is a concern that there should be appropriate flexibility, as proposed in new clauses 7 and 15. New clause 7 would substitute for the compulsory element within the referral orders the discretion that was sought in the evidence sessions by the Magistrates Association, which said that, particularly in relation to high-end offences, it would like the flexibility not to use referral orders. That is not proposed in the Bill.
Currently, a referral order must be given for the first offence when an offender pleads guilty and the offence is imprisonable. The only alternative that applies to very serious offences is custody. That is the concern. There are cases of robbery where the term is not sufficient to warrant being referred to the Crown court. There are offences of serious sexual assault that could be determined to come within the youth court jurisdiction. When dealing with a defendant who has no previous convictions and who pleads guilty at the first opportunity for such serious high-end offences, the courts do not have the discretion to decide whether to propose a referral.
The courts are often left in the invidious position of having to decide whether to impose a referral order or a custodial sentence. They may be reluctant to impose a custodial sentence and want the discretion to impose a substantial community order. That is not available to them under the Bill. The flexibility that magistrates would properly want when dealing with that high-end penalty is not available. These new clauses would provide that necessary discretion to enable magistrates to deal with penalties in an appropriate manner, particularly for serious crimes. That flexibility would avoid the inevitable step that we have talked about in earlier debates of an increase in the population of young offenders in detention. The new clauses would allow the magistrates another weapon in their armoury to stop the defendant reoffending, whereas custodial sentences often do not have that effect. I invite the Minister to consider them and the point about flexibility that the Magistrates Association quite properly made.
I hope that the Minister will also deal with the practical aspect of referral orders. I have said previously that there is concern that many referral orders are not implemented in a timely fashion, and that the additional referral orders that will be an inevitable result of the Bill will lead to costs. The impact assessment states that those costs will be offset by a reduction in reconviction rates, but will the Minister provide more details of that assumption? There will inevitably be costs, and the concern is that they need to be properly built into the system to enable youth offending teams fully to implement referral orders.
I understand that the Youth Justice Board is considering referral orders in relation to the roll-out of restorative programmes, which will all cost money if we are to give true effect to referral orders. There is concern that that must come to fruition—the additional referral orders need to be properly funded. Another matter on which a good opportunity is often not taken is rehabilitation for those with drug and alcohol addictions. Often, developing a youth offender from the criminal justice system requires proactive and immediate attention and treatment for such addictions. That does not happen, because of the paucity of adolescent services. It is important that the Government take that on board if they want to give true effect to the good intentions behind referral orders.

David Hanson: I thank the hon. Member for Enfield, Southgate for his new clauses. I shall deal first with new clause 15, which would provide the courts with a power to extend a referral order for up to three months. There is some merit in that proposal, and I am happy to examine it in detail. As I have said, an order should be subject to a maximum 12-month time limit, but within that there is the potential for it to be extended for up to three months for failure to comply or when it is impractical for the child or young person to comply. There is an argument, and the hon. Gentleman has made it, that there should be some flexibility, particularly if circumstances are beyond the control of the young person, to prevent them from completing the contract in the initial term. I ask the hon. Gentleman not to press new clause 15 on the basis that I shall consider it in detail and see whether we can bring forward something that meets his objective positively.
New clause 7, as the hon. Gentleman said, addresses a concern raised in oral evidence by the Magistrates Association, which was concerned about the compulsory conditions applying to referral orders. Its view was that, for more serious first offences to which the defendant pleads guilty, it should be open to the court to give a youth rehabilitation order with robust requirements rather than make the required referral order. The hon. Gentleman eloquently put that case again.
When a referral order is made, the young offender must agree a programme of action with a youth offender panel to form a youth offender contract, which may include such things as paying compensation, attending mediation sessions with a victim, carrying out unpaid work or participating in specified activities such as those that assist a young person to deal with drug or alcohol abuse. In short, the referral order is in place to deliver a restorative justice approach through a consideration of not just the causes of difficulties but how reparations can be made and mediation undertaken, based on offenders engaging with the court process for the first time. Restorative justice can be effective for young offenders who have not previously thought about the impact of their offending behaviour on others and the communities in which they live and work. I strongly appreciate that courts do not like to have their discretion fettered, but I believe that we have a strong case for the referral order to be maintained in its current position. It currently has the lowest reconviction rate of all juvenile sentences, at just over 44 per cent. It is an effective use of reparation for the prevention of reoffending, and I want to continue to provide that option for all those who qualify.
The terms of the contract can be robust and the penal power of that is strong. There is an opportunity for the case to be referred back to court for resentencing if the young offender fails to comply, but I believe that it is currently in the right place, and I support the position of the referral order on the face of the Bill. With those few comments, I hope that the hon. Member for Enfield, Southgate can accept my kind offer to look at new clause 15, but I ask him to withdraw both new clauses for the reasons that I have outlined.

David Burrowes: I am grateful to the Minister for his kind offer—I am always interested in considering kind offers from anyone, but whether I accept them is another issue. In relation to new clause 15, I am certainly willing to accept the offer to deal with the issue of flexibility. In a sense, that is the second bite of the cherry and relates to the wonderful amendment No. 141, which I was not able to move. The new clause provides the opportunity for flexibility in those instances when the referral order has not been able to be properly implemented. Therefore, I welcome the Minister’s indication and, in that regard, do not wish to press the new clause to a vote.
I would like the Minister to reflect further on new clause 7 and on the circumstances that the magistrates have outlined to us in Committee and which others have seen in many youth courts. Magistrates often feel obliged, given the seriousness of an offence, to move towards the custodial option. Given the concern about the ever-rising prison population, it is important to take seriously magistrates’ concerns that these offences are dealt with more often than not by way of a custodial option and not a referral order—we have already looked at ways by which that could be stemmed and the high rate of custodial sentences can be reduced
In a magistrate’s mind, it is not in the interests of justice or the public to deal a referral order for a serious case, such as sexual assault or robbery, through a referral order; if the defendant complies with that order fully, their conviction would effectively be spent and it will not be on the record. As far as the magistrates will be concerned, the defendant would basically be getting off for a serious offence. They often consider such an offence differently from those less serious cases that can properly be dealt with through a referral order. I do not wish to press the new clause to a vote or take any more time, but I invite the Minister to look at those particular circumstances and how those concerns can be alleviated.

Question put and agreed to.

Clause 21, as amended, ordered to stand part of the Bill.

Clause 22

Imposition of unpaid work requirement for breach of community order

David Burrowes: I beg to move amendment No. 89, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘50’.

Frank Cook: With this it will be convenient to discuss the following:
Amendment No. 90, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘45’.
Amendment No. 91, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘35’.
Amendment No. 92, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘30’.
Amendment No. 93, in clause 22, page 16, line 35, leave out ‘20’ and insert ‘25’.
Amendment No. 94, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘50’.
Amendment No. 95, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘45’.
Amendment No. 96, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘35’.
Amendment No. 97, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘30’.
Amendment No. 98, in clause 22, page 16, line 43, leave out ‘20’ and insert ‘25’.
Clause stand part.

David Burrowes: I do not propose to take too much of the Committee’s time on these amendments, whose purpose is to probe the Government on the figures that they have chosen, which are essentially to provide an alternative to a requirement of 40 hours of unpaid work and substitute 20 where there has been a breach of a community order.

David Hanson: As a minimum.

David Burrowes: That is quite right. The point of the amendments is to consider a sliding scale and whether that minimum could be set on the sliding scale between 20 and 50. Without getting too wrapped up in the individual numbers, could there be more flexibility explicit in the Bill to ensure that magistrates do not feel that they have to work to a prescribed level when dealing with a breach of a community order? That is the point of the amendments.
Let me turn now to the stand part debate. The concern is about dealing with defendants who have breached the community order and the need to impose an unpaid work requirement. Such people, who would no doubt often have a rehabilitation order imposed on them rather than a community punishment order, may not be suitable for unpaid work when that order is made. They might have health issues, or they may be an addict whose probation officer has determined that they are unsuitable for unpaid work. They would come before the magistrates after breaching the community order and, on the face of it, would not be eligible for the imposition of unpaid work. The concern is about whether the clause would impose an inappropriate sentence on those defendants.
I would also like the Minister to consider the question of flexibility. Magistrates might often want, not always as a matter of compulsion, to impose an additional penalty when there is a breach. Will the Minister also consider the unusual circumstances in which an order might break down through no fault of the defendant beyond a technical non-compliance? There might be a need to consider discretion.

David Heath: As the hon. Gentleman knows, I have not often departed from much of what he has had to say. It seems, however, that his amendments would do the opposite of what he hopes that they would achieve. Do they not reduce the discretion available to the court by inserting a higher figure for the minimum work requirement that the magistrates court can impose? Perhaps I have misread the provisions of the original clause, but that was certainly the impression that I was given.

David Burrowes: I am grateful for the intervention, which enables me to clarify. The purpose of the amendment, which could perhaps be better drafted, is to ensure flexibility in the numbers for the hours of unpaid work that are available. I wanted to draw out a comment from the Minister about why the Government have settled on 20 as a minimum, rather than another number, and to make the more general point about the suitability of such an order in some circumstances.

David Hanson: The clause attempts to set the minimum number of hours that may be imposed as a penalty when an offender breaches a community order. At the moment, the minimum figure is 40 hours. The Bill would set a minimum of 20 hours, while the amendments range from 20 to 50, which is above the above the current minimum.
The minimum of 40 hours that can be imposed as a penalty is, in some cases, too severe a response. I have attempted to take the approach that a minimum of 20 hours will be examined by the courts in the event of a breach. There is a precedent for 20 hours. Section 300 and schedule 31 of the Criminal Justice Act 2003 allow unpaid work of at least 20 hours to be imposed for fine default as an alternative to committal to prison. We have tried to establish that baseline, linked to the 2003 Act.
The amendments would replace the proposed 20 hours with a larger figure. In some cases, they would increase the current minimum of 40 hours and, in others, they would decrease it. I believe that 20 hours is a fair minimum. It could obviously be increased at the discretion of the sentencers. The new minimum will be a far better figure in terms of the fairness of the penalty than the current minimum of 40 hours.
We are attempting to examine this in detail and the current minimum applies only to those community orders that do not already have an unpaid work requirement. Where there is such a requirement, there is no minimum to the amount of unpaid work that may be added for the breach. The danger is that, where a court feels that adding 40 hours is too much, it may instead resentence the offender, possibly even to a short period of custody. My intention is reduce the minimum to 20 hours. I ask the hon. Gentleman to reflect on whether he wants to have a different minimum and whether in reality he wants to increase the minimum from 40 hours to 50 hours. Having got to know him over the last few weeks, I suspect that he would not wish to do that. I urge him to accept our minimum of 20 hours and withdraw his amendment accordingly.

David Burrowes: Having heard the rationale for 20 hours, I will not press the amendment. However, I ask the Minister to respond at some point to our concerns about the imposition of unpaid work requirements on those defendants who have already been found not to be suitable for such unpaid work, which led to the original imposition of a rehabilitation order. There is a concern that this order should not set up claimants to fail. That important flexibility is needed within the system. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Schedule 5

Youth default orders: modification of provisions applying to youth rehabilitation orders

Amendments made: No. 49, in schedule 5, page 155, line 7, leave out ‘“convicted”’ and insert ‘“conviction”’.
No. 50, in schedule 5, page 155, line 17, leave out ‘and’ and insert—
‘(aa) in paragraph (b), for the words following “conviction” there were substituted “must be, in the case of an amount in default which is specified in the first column of the following Table, not more than the number of hours set out opposite that amount in the second column.
TABLE

Amount

Number of hours
An amount not exceeding £250
8
An amount exceeding £250 but not exceeding £500
14
An amount exceeding £500
24”,’.
No. 51, in schedule 5, page 155, line 18, leave out ‘18”’ and insert ‘12”’.
No. 52, in schedule 5, page 155, line 26, leave out ‘12’ and insert ‘10’.
No. 53, in schedule 5, page 155, line 28, leave out ‘16”’ and insert ‘12”’.—[Mr. Hanson.]

Schedule 5, as amended, agreed to.

Clauses 24 and 25 ordered to stand part of the Bill.

Clause 26

Appeals against conviction

Maria Eagle: I beg to move amendment No. 207, in clause 26, page 19, leave out lines 33 to 38 and insert—
‘“(1A) For the purposes of subsection (1)(a), the conviction is not unsafe if the Court think that there is no reasonable doubt about the appellant’s guilt.
(1B) Subsection (1A) does not require the Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand.” ’.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 100, in clause 26, page 19, line 34, at end insert
‘and they have a certificate from the trial judge confirming that the evidence heard by him and the jury was sufficient to prove the prosecution case and that he had admitted and the jury had considered, and been directed by him in relation to, the relevance of any evidence of the procedural or other misconduct.’.
Government amendments Nos. 208 and 209.
Amendment No. 101, in clause 26, page 20, leave out line 14 and add
‘may, as the Court think fit in the interests of justice in that case, either direct that there be a retrial or that the appellant be acquitted.”’.
Amendment No. 102, in clause 26, page 20, line 14, at end add
‘, who must initiate or not initiate such criminal or civil proceedings (or both) as he thinks best suit the justice of the case (taking into account the impact on the victim of the offence or his family of his decision either to proceed or not) and which decision either to proceed or not will provide the most suitable redress to the subject of such misconduct, deter any such misconduct in the future and restore public confidence in the criminal justice system.”’.
Clause stand part.
Government amendment No. 210
Government new clause 28—Power of Court Of Appeal to disregard developments in the law—
‘(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.
(2) In section 2 (appeals against conviction), after subsection (1B) (as inserted by section 26(2)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction.”
(3) In section 13 (disposal of appeals against verdict of not guilty by reason of insanity), after subsection (1B) (as inserted by section 26(2A)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether the verdict is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the verdict.”’.
(4) In section 16 (disposal of appeals against finding of disability), after subsection (1B) (as inserted by section 26(2B)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether a finding is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding.”
Amendment (a) to new clause 28, in subsection (2), after ‘case’, insert
‘and are satisfied that it would not give rise to substantial injustice’.
Government new clause 29—Meaning of unsafe: Northern Ireland.
Government new clause 30—Power of Court of Appeal to disregard developments in the law: Northern Ireland.

Maria Eagle: It is quite a relief after this length of time finally to be able to welcome you to the Chair, Mr. Cook. You have been here for some time and I feel that I have neglected the courtesies, as it were. It is only because I have not managed to get to my feet yet. Now that I am on my feet, it might be some time before my right hon. Friend the Minister of State, Ministry of Justice and my hon. Friend the Home Office Minister get to do their bit. None the less, the theatrical profession always thinks that delayed entrances have something to be said for them. We will just have to see whether the Committee agrees with that by the time we get to the end of this group of amendments. At least I hope that the Committee will be glad that we have managed to move up a group. I hope that the hon. and learned Member for Harborough is happy to acknowledge that we are trying to be as flexible as possible even if all of our notes are not always available.
In respect of these amendments, the Committee will recall the extensive debate about quashing convictions at the beginning of the Public Bill procedure. Indeed an extensive amount of consultation and thought went into those areas long before either I or my right hon. Friend came into the Department. None the less, with Government amendment No. 207, which I am pleased to be able to move, we are now able to come to the Government’s considered view of how we ought to go forward. I look forward to debating with members of the Committee and others to see whether they think that we have got it right and also to dealing with the other amendments that have been tabled to deal with these issues.
The policy that clause 26 seeks to reflect is that it is not right that the Court of Appeal should be obliged to quash convictions as unsafe because of procedural irregularities when there is no doubt that the appellant was guilty of the offence. That is the mischief that we are trying to deal with in respect of these points. Our objective is to ensure that the appellant’s right to due process of law does not automatically override the need to ensure that appellants who are plainly guilty remain convicted. As the Secretary of State for Justice and Lord Chancellor said on Second Reading, such a change requires only a small adjustment to the law. We are not seeking to imply any criticism of the Court of Appeal. His statement on Second Reading reflected a change of view by the Government in that we agree on reflection that the convention exception, which is currently in new subsection (1B) as it stands, does not go far enough in providing that extra protection. We need to ensure that new subsection (1A) does not prevent the court from allowing an appeal even when the appellant’s guilt is not in doubt and when there has been serious misconduct by the investigating or prosecuting authorities. It is with that aim in mind that we have tabled Government amendment No. 207.
Government amendment No. 207 amends new subsections (1A) and (1B). The revised version of new subsection (1B) ensures that the Court of Appeal retains a discretion to allow an appeal if it thinks that it would seriously undermine the proper administration of justice to allow the conviction to stand. That is a change from the current wording that the Committee members will see in the Bill as published.
Amendment No. 207 provides for a wider exception than the published new subsection (1B) in the Bill, so it impinges more upon the operation of new subsection (1A). We believe, however, that that will cover all the circumstances that will be caught by the existing convention exception as it is set out in new subsection (1B) in the Bill, but it will go further, allowing convictions to be quashed when there has been serious misconduct by the investigating or prosecuting authorities, and we are back to the Mullen-type cases that we had a debate about earlier. [Interruption.] The hon. Member for Somerton and Frome sounds like an old record because I have heard him say it before.

David Burrowes: How many cases are we dealing with for the Government to seek to change the status quo?

Maria Eagle: There is no doubt about the fact that it is a small number of cases. They are the kind of cases that can significantly damage the reputation of the criminal justice system as a whole if they are allowed to proceed as they have in the past with convictions of the plainly and incontrovertibly guilty being quashed at a later date. As I said at the beginning of my remarks, that is the mischief that the clause and these amendments to the clause seek to address. That has been the case all the way through the consultations that have taken place, resulting in the clause as it was originally drafted and in the changes that we are now proposing.
It is not a question of there being thousands of cases affected by this issue. Only a small number of cases are affected, but they are cases that, if they are allowed to stand—as the current law suggests they would—could do a disproportionate amount of damage to the reputation of the criminal justice system.

David Burrowes: On the subject of the number of cases, the consultation paper on the regulatory impact assessment for quashing convictions says that the potential number of individual convictions affected before the new amendments will be very small, probably fewer than 20 each year. If the new amendments are made, would even fewer cases be affected?

Maria Eagle: The new amendments would give the Court a wider discretion than was the case in the Bill originally. So it would be for the judges and justices to consider the individual circumstances of the cases that come up. Nevertheless, a small number of cases would be affected—perhaps fewer than 20 or slightly more. However, given that the discretion is wider, it would be for the judges to decide, in the appropriate circumstances, whether to quash a conviction, even though the person is plainly guilty, or whether they feel that that conviction can still stand. In any event, we are talking about a small number of cases, but cases that, as I have said, can do a great deal of damage to the reputation of the criminal justice system if they continue. If we did not believe that to be the case, we would not seek to make the changes that are in the clause and we would not have had the consultations that we have.
Amendment No. 207 would also replace new subsection (1A). The revised version is designed to clarify that the Court of Appeal is a court of review, which we all know it is, and is not required to decide afresh whether it is satisfied of the appellant’s guilt. So, instead of the test used in the present subsection—that the Court is satisfied that the appellant is guilty, which might give rise to the view that it has to retry the case or be satisfied of the facts, as was the first instance court—new subsection (1A) says that the Court must say that it thinks there is no reasonable doubt about the appellant’s guilt. New subsection (1A) does not have the ambiguity of the existing draft. We hope that that clarifies matters.
Amendments Nos. 208 and 209 are consequential amendments, to apply the changes effected by clause 26 to two other provisions, namely sections 13 and 16 of the Criminal Appeal Act 1968, which also make use of the same test of unsafety. New clause 29 is the Northern Ireland equivalent of clause 26. We are dealing with new clause 28 now, rather than at the end of proceedings.

David Heath: Why was the decision taken that this measure now needs to be extended to Northern Ireland, when that was not the view when the Bill was first drafted?

Maria Eagle: In my experience, that is normally a matter of consultation with the jurisdiction and establishing whether people there want this measure to apply. One would expect that, after those consultations, the Northern Ireland criminal justice system suggested that it would want the clauses to apply there. I imagine that that is why new clause 29 is here.

David Heath: Will the Minister confirm that the Northern Ireland Human Rights Commission said that part 3 does not extend to Northern Ireland and that it welcomed that?

Maria Eagle: I do not have any comment to make about what the Northern Ireland Human Rights Commission has said. It may well have said that, but I am not responsible for the criminal justice system in Northern Ireland and we are including the new clauses that relate to Northern Ireland because the Northern Ireland jurisdiction has asked us to save it the difficulty of finding other vehicles to do so. It obviously sees the sense of these measures in respect of Northern Ireland and we are merely acceding to those requests. If I am wrong about that—I suspect that I am not—I will obviously get back to the hon. Gentleman, but that is the case as I understand it.

Edward Garnier: I am provoked by the intervention to look at clause 127, which deals with the extent of the Bill. I may not be reading it carefully enough, but I cannot see a reference to clause 26 in clause 127 that extends to Northern Ireland. I may have got that completely wrong.

Maria Eagle: I shall have to rely on others to check that, but I hear what the hon. and learned Gentleman says. I hope that he will bear in mind the fact that I was not anticipating dealing with new clause 28 and all of these matters at this point. I hope that he will give me a certain amount of leeway.
New clause 28 amends section 2 of the Criminal Appeal Act 1968, and gives the Court of Appeal the discretion to disregard developments in the law since the date of conviction. During the various consultations on what has turned into clause 26, members of the Committee will be aware that it was brought to the Government’s attention that there was a lacuna in the current legislation, which new clause 28 will fill.
The matter arises from the judgments in the cases of R v. Cottrell and R v. Fletcher. In those instances, two appellants who had clearly committed acts of unlawful sexual intercourse with a girl under the age of 16, could not be prosecuted for that offence because a statutory time limit had applied at the time at which they were prosecuted. In accordance with the usual practice at the time, they were instead charged with indecent assault, to which the time limit did not apply, and were convicted.
Subsequently, the House of Lords decided that it was impermissible to charge indecent assault in such circumstances, and after that decision, the Court of Appeal had no option but to consider the law in its present state when one of these cases was referred. It was reluctant to quash a conviction in which the appellant was properly convicted under the law as it was when the person was tried, and would normally avoid having to do so by refusing leave to appeal out of time. However, there are some circumstances in which a case that is referred to the Court of Appeal does not need leave, particularly where those cases are referred by the Criminal Cases Review Commission.
In this particular case, the Court was obliged to hear the appeal and obliged to quash the conviction, even though it was apparent and certain that the appellant had been properly convicted of serious offences. That is what new clause 28 seeks to deal with. Members of the senior judiciary brought the matter to the attention of the Government. It is clearly something that needs to be dealt with and new clause 28 is our attempt to do so. 
The Government agree with the senior judiciary that this matter must be dealt with. The Criminal Cases Review Commission does not disagree with the view that this is an unsatisfactory state of affairs. Our preferred solution is to give the Court of Appeal the discretion to disregard developments in the law since the date of conviction, and that is the effect of new clause 28.
The hon. and learned Member for Harborough has added amendment (a) to new clause 28, and he has tabled other amendments which, with your permission Mr. Cook, we will deal with once he has had a chance to set out his stall.
New clause 30 applies those matters to Northern Ireland in accordance with the wishes of those who look after the criminal justice system in that jurisdiction. With those few remarks, I commend amendment No. 207 to the Committee.

Edward Garnier: In resisting the amendments I do not think that I can be quite as brief as the Minister, because I shall also try to persuade the Committee of the good sense of the Opposition’s amendments. I regret holding hon. Members up if they have other things to do, but we are coming to quite an important aspect of the powers of the criminal justice system and of the way in which the Court of Appeal criminal division deals with matters before it.
I am very much reliant on advice that I have received from others on this subject. Although I am now in what I think is my 35th year at the Bar, I do not have great experience of the Court of Appeal criminal division. Actually, it might be an exaggeration to say that I am in my 35th year. I was called in 1976, so I am in my 32nd year. My practice has been predominantly in the civil jurisdiction dealing with media law, confidence, defamation and so on. However, I have a little understanding of what goes on in the Court of Appeal, and some understanding of what goes on in the criminal courts through having sat as a recorder for the past 10 years. Nevertheless, I make no secret of the fact that I shall be relying heavily on the works of Professor J. R. Spencer, who is attached to Cambridge university and who attends frequently at the Judicial Studies Board lectures and refresher courses that I too attend. I have not only read what he has to say, I have on many occasions in the past 10 years had the benefit of listening to him speak on Government proposals for amending the criminal law in one form or another. He has written quite extensively and thoroughly on the subject that is dealt with by this part of the Bill.
As we all know, in September 2006 the Government announced their intention to change the law so that, in future, the Court of Appeal would no longer be able to quash convictions on purely procedural grounds if it was sure that the defendant was factually guilty. Last summer, the Government issued what they were pleased to call a consultation paper. The paper was fairly brief, and made it quite clear that, although the Government were interested in hearing what people had to say about how to achieve the aims that are reflected in the new clause, they were not consulting on the aims themselves or on whether the law should be changed. The consultation was somewhat partial, therefore.
The paper said that the present system risks outcomes that are unacceptable to the law-abiding majority. As the Government were committed to rebalancing the criminal justice system in favour of the victim and the law-abiding majority, they said that the law had to be changed. The depth of research underlying the paper was clear from the Government’s repeated references to the work of a wholly non-existent body, called the 1985 royal commission—an imaginary amalgam, one presumes, of the 1981 Philips commission and the Runciman commission of 1993.
Among those who put forward views adverse to those of the Government were the senior judiciary, the council of circuit judges, the Criminal Cases Review Commission, the Law Society, the Criminal Bar Association, Justice and Liberty. I shall list the objections made by that quite powerful group of bodies, which I would have thought were worth listening to.
First, there was a failure to recognise that the criminal appeal process exists not only to ensure that the factually innocent are not punished but to uphold the rule of law. Thus, it was said, the function of criminal appeals is not just to see that, in a given case, the right result is reached, but to ensure that the law of the land in general and the rules of criminal procedure and evidence in particular are respected and properly applied. Because of that, it is inevitable that the Court of Appeal must sometimes quash convictions that are tainted by grave breaches of the law or serious failures to apply the rules, irrespective of the factual guilt or innocence of the accused. There are two good reasons for that: one theoretical and one practical.
The theoretical reason is that a criminal conviction is acceptable only if it carries moral authority and a decision reached in defiance of the basic rules that society prescribes for criminal investigations and trials does not. The practical reason is that, if convictions can be upheld where the authorities have flouted the basic rules, that will undermine the self-restraint that we expect the authorities to show in keeping to them. If the police know that if they break the rules the resulting conviction will be appeal-proof, as long as nobody finds out until afterwards, that would—to use the Government’s jargon—send a signal that breaking rules can pay.
The second objection from the bodies I have mentioned is that the proposal is unnecessary because it fails to understand the way in which the rules of criminal appeal currently operate. Behind the proposal is the notion that, as the law now stands, defendants who are clearly guilty regularly escape punishment because the Court of Appeal quashes their conviction on account of footling procedural irregularities. However, that is not so. For most procedural irregularities the Court of Appeal will uphold the conviction if it is convinced that the defendant is really guilty and would still have been convicted, even if the irregularity had not taken place.
There is plenty of case law making it clear that the Court of Appeal will quash the conviction of a defendant who is plainly guilty in respect of only the most serious procedural irregularities. In the comparatively rare cases where the Court of Appeal considers the procedural flaw too grave for the conviction of a visibly guilty person to be allowed to stand, it will usually order a retrial where, as is usually the case, a new trial can cure the problem. The current law is not in need of change. I do not say that out of complacency, but because an examination of the issues underlying the Government’s proposals shows that they do not stand up.
As a matter of principle, it is right that some purely procedural errors—as the Government calls them—should cause the conviction to be quashed, irrespective of the defendant’s factual guilt or innocence and, in some cases, it should not be possible for the defendant to be retried. Having said that, the present law is not free from difficulty, because neither statute nor case law, nor legal writers, have laid down any clear rules to identify cases that fall into either of those two categories. I accept that that uncertainty is unsettling and probably helps to foster the false impression about the operation of the current law that has led to the Government introducing a Bill to change it.
I want briefly to set my concerns in context and mention how the Court of Criminal Appeal has developed since the Criminal Appeal Act was passed in 1907, which was the first time that the Court of Appeal could review convictions and sentences based on this issue—or at all. Section 4(1) of that Act says:
“The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.”
That provision was modified to some extent under the Criminal Appeal Act 1968, in which the Court was permitted to quash convictions for failures of due process but which did not allow the Court of Appeal to order a retrial. That modification was a response to some of the difficult cases that the Court of Appeal had had to deal with over the previous 50 or 60 years. On the one hand, the Appeal Court would sometimes uphold convictions despite failures of due process that most people would regard as fundamental. An example of a case where nowadays we would think that the wrong result was arrived at occurred during the first world war. A Chinese man with virtually no command of English had no interpreter at the trial so was unable to follow the proceedings. In the judgment, the Court of Appeal equated the position of a defendant who was present but unable to understand the proceedings with that of a defendant who was physically absent. It stressed the great importance of providing interpreters for those who were unable to follow spoken English. However, despite that endorsement of a basic principle, the Court applied the proviso and affirmed the conviction for murder because, as it said, if the evidence had been translated to the appellant, the same verdict would inevitably have followed. As a result, on 1 January 1916 the poor man was hanged at Pentonville.
It is always said that another fundamental requirement of a trial is that the judge who is trying the case should be impartial and unbiased. I do not often speak ill of my profession, but this is an occasion to do so. There was a case in 1969 when the Court of Appeal criminal division refused to quash a conviction although the trial judge had demonstrated his bias by saying in a loud voice, “Oh, God” when defence counsel began his closing speech, and then by laying his bewigged head down on his arms and making groaning noises while counsel was trying to impress the jury. Surprisingly, the Court of Appeal upheld the poor defendant’s conviction.
At the other end of the spectrum, appeal courts sometimes quash convictions for minor procedural irregularities with the result that a defendant who is probably guilty walks free. In the case of Hales, the Court of Appeal quashed the defendant’s conviction for theft and the 15-month prison sentence consequent upon it because the sentence had been pronounced when he was absent from the court, although he had been present throughout the trial. In another case, the Court of Appeal quashed the defendant’s conviction for dangerous driving and the resulting prison sentence because the particulars of the offence as stated in the indictment were that he
“drove a motor car recklessly or at a speed or in a manner which was dangerous to the public”.
That offended the rule against duplicity, but most people would not have thought it appropriate in justice to quash the conviction.
The position became even more muddled when the House of Lords Judicial Committee started inventing a theory that certain procedural irregularities had the effect of making the initial trial a nullity. It was trying to find an inventive way to get through the problem that the current laws relating to the Court of Appeal criminal division as invented in 1907 presented, so it suggested that some procedural irregularities led to the initial trial being void, as though it had never occurred, and it ordered a retrial so that the retrial could cure the irregularity in the first trial.
Eventually, we got to a position in 1964 such that the Criminal Appeal Act was amended to give the Court power to order a retrial when it quashed a conviction because new evidence had come to light, and then in 1988 Parliament amended the Act again to give the Court of Appeal criminal division the power to order a retrial when quashing the conviction for whatever reason. The latest position for which figures are available is that in 2004 66 cases were ordered to be retried on the Court of Appeal quashing a conviction on account of procedural irregularity.
The Runciman report was produced in 1995, and there was a further change when Parliament amended the Act to state that the Court of Appeal
“shall allow an appeal against conviction if they think that the conviction is unsafe; and...shall dismiss such an appeal in any other case.”
It is thought that when drafting that the Home Office was trying to prevent people who were plainly guilty from getting away with it on procedural grounds. Lord Taylor, then the Lord Chief Justice, said in the House of Lords, “It’s business as usual, chaps.” That is how the Court of Appeal and the Judicial Committee interpreted that amendment to the law.
To achieve clarity, I shall consider which due process errors should automatically justify the quashing of a conviction. Professor Spencer lists a number of such errors, including, first, cases in which
“the court had no jurisdiction to try the offence”.
An obvious example is one in which the judge trying the case is not a judge at all. The second error applies to cases in which
“the court below fundamentally misapplied the substantive criminal law”.
In such cases, the defendant was convicted of an offence of which he was not guilty and was essentially put before the jury for an offence that did not exist. The third error applies in cases in which
“the rules of natural justice were broken”.
There are two rules of natural justice. I am sorry to resort to legal Latin, but the first is nemo judex in sua causa. That is to say, no matter how clear a person’s guilt, if the judge had a particular reason to be biased or appeared to demonstrate bias, one of the rules of natural justice has been breached.
The other rule is that people should not be convicted without having an opportunity to defend themselves and advance a case. That can be amusing in some cases, but rather sad in others. In 1988, a judge refused to allow a defendant—a male transvestite—to take part in the proceedings unless he wore men’s clothes. The defendant did not want to wear men’s clothes because he did not feel comfortable in them, and was convicted because he refused to appear in court. [Interruption.] It is funny in one sense, but on the other hand it is perfectly obvious that people should not be convicted in such conditions.
The fourth category that Professor Spencer highlights is
“disregard of other procedural rules of major importance that exist for the particular protection of the defendant”.
I will not go into a long explanation of those rules, but they are obvious and recognisable. Fifthly, he highlights the
“existence of some formal bar to prosecution”.
which applies, for example, if the bringing of the prosecution is time-barred. Finally, there could be:
“gross misconduct in the course of investigating the offence, or preparing for the trial”
I want the Committee to consider under what circumstances the Court of Appeal should be permitted to refuse to order a retrial where such abuses. Professor Spencer says that he can see no reason in principle for refusing to order a retrial in any of the cases in the first four categories. The only principle for refusing to order a retrial is what might be called the penalty shoot-out theory of criminal procedure: the notion that the prosecution is allowed only one shot at goal and if it misses, for whatever reason, it is unfair to the defendant to let the prosecution have another go.
If that notion of criminal justice has any validity at all, it might justify forbidding a retrial in cases where the prosecution is in some way to blame for what has happened. However, it could hardly justify the absence of a retrial in a case where the prosecution is blameless and the failure of due process was the result of a bungle by the court. In the light of the overriding objective of the new criminal procedure rules, it is questionable whether the penalty shoot-out theory is tenable even when the prosecution has blundered.
Professor Spencer suggests that a retrial should be impossible only in cases that conform to his fifth and sixth criteria, in which there is some formal bar to prosecution and gross misconduct in the course of investigating the offence or preparing for the trial. In those situations, the prosecution should not have taken place at all: if the lower court had done its job properly, it would have stopped the proceedings. If that is the root of the problem, it obviously cannot be cured by allowing the prosecution to continue. An example of the final category is the case of Mullen, which is the only one that the Government have been able to come up with. That decision seems to form the basis of their argument in favour of messing around even further with the powers of the Court of Appeal.
I am sorry not to have compressed Professor Spencer’s argument as fluently or as comprehensively as he might have wished. However, it is important that we pay particular attention to people who have spent their academic lives considering such issues: they have looked at case law and the way in which the Court of Appeal criminal division has developed over the past 100 years. For the Government to want to change that on the back of one case—the Mullen case—in which the defendant was unlawfully rendered, if that is the right expression, from Zimbabwe to this country to face trial, because the Government either could not be bothered or did not want to become engaged in an extradition hearing in Zimbabwe is pretty appalling.
Before concluding, I wish to deal with the point at issue in Government new clause 28. The Minister explained it, but in amendment (a), we are trying to make it clearer. We do not have the same fundamental objections to new clause 28 as we do to clause 26 as a whole, but it is not drafted as carefully as it could be. I suspect that Ministers have received the a copy of the letter dated 24 October that I have received from Professor Graham Zellick, chairman of the Criminal Cases Review Commission. He sets out in delightfully simple terms why he thinks that the current Government new clause is not quite right. He makes it clear that the commission
“does not oppose this amendment in principle,”—
nor do we—
“but we do regard its drafting as seriously defective. In our view, the clause should make explicit reference to the substantial injustice test which has featured over the years in case law, so that the clause would then read as follows”.
I have copied his proposed amendment. I adopt his reasons for the proposal and support them. He said:
“The present wording gives the Court no guidance whatever as to the circumstances in which a development in the common law may be disregarded and it does not follow that the statutory provision is to be applied in line with the Court’s long-established practice in respect of applications for leave to appeal out of time based on a change in the law.
The absence of the link to substantial injustice means that change of law could be disregarded in cases where in our view it should be taken into account and we believe that it is right for Parliament to give this guidance to the judges of the Criminal Division and thereby limit the scope of the discretion.
Many judges sit in the Criminal Division who are not particularly experienced in criminal law and may not be fully aware of the background to this amendment.
The inclusion of a reference to ‘substantial injustice’ should prompt the Court over time to elucidate and clarify its meaning which is essential if a provision of such importance is to be understood by all those affected by it or who have to deal with it.
The Criminal Cases Review Commission, in particular, needs to know the basis on which legal developments will be disregarded if it is to be able properly and sensibly to apply the ‘real possibility’ test in the Criminal Appeal Act.
The absence of a reference to substantial injustice and the enactment of the clause in its present open-ended form would preclude or seriously inhibit the House of Lords”—
Judicial Committee, I add—
“from ever being able to offer guidance as to the proper scope of the new clause.
It is true that the expression ‘substantial injustice’ even in this context suffers from some uncertainty, but that is a reason for including it in the statutory provision so that it can be adequately defined or shaped by the Court in the light of past experience and future cases. It is not a reason for a clause that is wholly destitute of guidance.”
Professor Zellick and the CCRC remain puzzled that the Government, despite being told about those arguments in advance of drafting their new clause, have not found them acceptable. There are thus two big issues. The first concerns new clause 28, and the secondly the approach to the powers of the Court of Appeal when dealing with appeals in criminal cases. I have relied, as I have made clear, on the learning of Professor Spencer, but any mistakes in recounting his arguments are mine, not his. If, in the unlikely event that Professor Spencer reads the Committee Hansard, he sees reference to his name and learning, he should not feel in the least bit embarrassed if he wishes to write to me and say that I have got it all wrong. However, I do not think that I have. Where we are going wrong is in introducing the provisions simply on the basis of one case and on an apparent appeal to populism to ensure that people do not leave court after a successful appeal even though they are, in fact, guilty. It is a bigger issue than that.
A court of criminal appeal has a public and a private purpose: the public purpose of ensuring that people are not convicted improperly, and that the authorities, whether they are the prosecutors, police or the court system, do not condone and repeat bad behaviour; and the private purpose of dealing with the individual appeal, which is of particular interest to the appellant. I urge the Government to pay attention to the great weight of authority underlying the criticism in the responses to the consultation paper. I doubt very much if anybody wrote to the Government to say, “What a good idea this is, we can’t wait for it to come into force.” All the criticism went in the other direction, but the Government ignored it. No doubt they had their reasons for doing so.
Amendment No. 100 may be up in the air, because the Government have amended, or hope to amend, the relevant part of the Bill. To some extent, but not as much as I should like, the Bill upholds the difference between the Court of Appeal and the court of first instance by requiring that the Court of Appeal should receive a certificate from the trial judge confirming that the evidence that he and the jury heard was sufficient to prove the prosecution case, and that he had admitted—and the jury had considered and been directed by him on the matter—the relevance of any evidence of procedural or other misconduct. The Court of Appeal must have evidence before then that the question of procedural irregularity was dealt with, and not simply kept from the court or brushed under the carpet.
Amendment Nos. 101 and 102 touch on clause 26 (5), which would insert new section 30B into the Criminal Appeal Act 1968 and states:
“If it appears to the Court of Appeal, in determining an appeal under this Part, that there has been serious misconduct by any person involved in the investigation or prosecution of the offence the Court may refer the matter to the Attorney General.””
We wish to delete the words,
“may refer the matter to the Attorney General”,
and replace them with
“may, as the Court think fit in the interests of justice in that case, either direct that there be a retrial or that the appellant be acquitted.”
That would reinforce the power of the Court of Appeal to order a retrial or to acquit, rather than simply shifting the matter over to the Attorney-General to deal with the misconduct in some other disciplinary way, but without affecting the defendant’s right to a retrial or to be acquitted.
Turning to amendment No. 102, if the words,
“may refer the matter to the Attorney General”,
are left in the Bill, we want to insert the words
“who must initiate or not initiate such criminal or civil proceedings (or both) as he thinks best suit the justice of the case (taking into account the impact on the victim of the offence or his family of his decision either to proceed or not) and which decision either to proceed or not will provide the most suitable redress to the subject of such misconduct, deter any such misconduct in the future and restore public confidence in the criminal justice system.”
I have taken a little while to set out my arguments and those that I have borrowed from others. Given that the Government are making a fundamental change—and not a very good one—to the criminal Court of Appeal, it is important that the arguments against that change, which they have so far ignored, should be set out extensively. I make no apology for doing so. If we are not successful in resisting the Government in Committee or on the Floor of the House, the other place will not feel in the least inhibited about doing the right thing on clause 26.
The Bill has been bolted together like some sort of Heath Robinson contraption. From time to time, the Government think of something else to write about and stick it into the Bill. On Second Reading, the Secretary of State revised his initial views about what clause 26 should do, and now, in Committee, the Government are bolting on a complete rewrite of clause 26. If that is how they want to proceed with making this legislation, Members considering the Bill at later stages should not have any inhibitions about undoing this bolt-on business and putting the law back where it ought to be.

David Heath: I do not propose to take quite as long as the hon. and learned Member for Harborough to make the case against the clause. The proposal must have seemed like a good idea at the time to the Government, but they have been trying to row back from it ever since, because the arguments in favour of it do not stand up. They are now attempting in their amendments to make partially digestible that which is inedible.
The Lord Chancellor made it plain on Second Reading that the clause has few friends in his Department. He tried his best to suggest that there might be a reason why it is necessary, but he could not come up with a single concrete example of a case in which the discretion that is currently available to the Court of Appeal is not sufficient to deal with the supposed mischief that he described. Indeed, he went quite the other way and made plain his view of the famous Mullen case. I teased the Under-Secretary when she talked about Mullen and similar cases, because we still do not know what the similar cases are. The Lord Chancellor said that an egregious—I think that is the word he used—abuse of process had occurred, that the Court of Appeal had had to come to that decision, and that the right thing to do was to free someone on appeal. There is a big question, therefore, about the utility of clause 26.
Having said that, the Lord Chancellor did say that he would rewrite the clause and come back with more acceptable proposals. I do not want to suggest that he has not been faithful to at least part of that intention. Government amendment No. 207 is an improvement—as far as it goes—on the wording of the original clause 26. However, it still raises some serious questions about what the Government are trying to do. Why do they seek to fetter the discretion of the Court of Appeal and what will the consequences be?
The key operative concession, if we can put it that way, is to downgrade the requirement on the Court of Appeal so that it no longer needs to be
“satisfied that the appellant is guilty of the offence”.
The amendment refers instead to there being
“no reasonable doubt about the appellant’s guilt.”
I have to say that that still puts the Court of Appeal in a position whereby it is required to act as a court that is finding on fact, not just on the legal position and potential abuse of process. That is unsatisfactory.
New subsection (1B), which Government amendment No. 207 would insert, reads:
“Subsection (1A) does not require the Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand.”
Again, that asks the Court to make a judgment about whether it would seriously undermine the proper administration of justice, rather than simply to take a view on whether there had been an abuse of process that required it to find that the original verdict was unsafe, and should therefore be overturned. Both changes would leave the Court of Appeal in an unsatisfactory position.

David Burrowes: I certainly endorse the points that the hon. Gentleman makes, particularly on the position in which the Court would find itself when forming a view on the facts of the case. I am not sure whether the Government intend to amend the explanatory notes, but paragraph 228 states:
“It would be for the Court to form their own view as to guilt on the evidence available to them; where they were in any doubt the Court would be under no obligation to seek to resolve it by calling for further evidence.”
The fundamental constitutional concern is that, in essence, the Court would be encouraged to usurp the primary role of the jury in determining guilt.

David Heath: The hon. Gentleman is correct. That is precisely my point. I think that that proposal fundamentally changes the nature of the Court of Appeal. It is not a minor amendment to the Criminal Appeal Act 1968, nor is it just a minor “recalibration”—is that the word that the Lord Chancellor used?

Edward Garnier: He usually says “tidying up”.

David Heath: He does indeed. In this instance, however, I think he used the word “recalibration”. That is not what the measure does. It fundamentally changes the process of the courts and the role of the Court of Appeal. On those grounds alone, it should be resisted.
If the Lord Chancellor’s purpose was simply to underline the discretion already available to the Court, he could have done that without clause 26. I do not think that anything requires the Court of Appeal not to take a sensible view about the safety of a conviction when making its determination. No evidence has been adduced to suggest that that is that case. What we are talking about is not asking the Court to act differently, but creating yet another headline for the newspapers and people with less understanding of the legal process to give the impression that we are significantly shifting the way in which the courts will work, but in the process undermining the legal system as we know it. That is profoundly dangerous.
I tested the Under-Secretary of State for Justice on new clause 29, which was originally in this group; it is not one that was added, Mr. Cook, when you sensibly altered our proceedings. New clause 29 was always in this group. It would extend these provisions on the Court of Appeal to Northern Ireland. I wanted to test her on that because I have the benefit of the Northern Ireland Human Rights Commission’s briefing. The commission is not just another pressure group, which we can safely disregard if we do not like what it says. It is a statutory body that was set up under the Northern Ireland Act 1998 to review the adequacy and effectiveness of Northern Ireland law and practice relating to the protection of human rights. That is its sole purpose, so what does it have to say about the provisions? Its briefing is instructive, saying that
“Part 3 of the Bill does not extend to Northern Ireland and the Commission welcomes that, view of the concerns it expressed in October 2006.”
That is when the commission responded to a consultation by the Northern Ireland Office on the proposal before us. It continues:
“The Commission stressed at the time that any proposals for limiting the independence of the Court to quash convictions would impact fundamentally on the value given in the criminal justice system to considerations of procedural fairness.”

Maria Eagle: The hon. Gentleman will be aware that the Northern Ireland Office sought to extend the provisions to Northern Ireland, and will have taken full account of its stakeholders’ opinions. That is not a job for me to do in the Ministry of Justice, so I can only assume that the Northern Ireland Office consulted all its stakeholders, including the commission, when coming to its views. The Ministry of Justice and I as the Minister proposing the new clause are simply seeking to do what the Northern Ireland Office has asked us to do.

David Heath: Precisely so. That is precisely my point. Here we have the body charged with commentary on these matters—establishing the rights and wrongs of a case—being consulted by the Northern Ireland Office and returning with a damning indictment on the Government’s proposal. What is the reaction of the Northern Ireland Office? It commissions the Under-Secretary of State for Justice to come to this Committee to extend it anyway, because apparently it is not interested in what the Northern Ireland Human Rights Commission says.

Maria Eagle: I do not think it is fair of the hon. Gentleman to say that the Northern Ireland Office takes no interest in what the Commission said. It has a range of stakeholders and takes a balanced view, as any Department would, having consulted on the right way forward. It has made a decision, and it is unfair of the hon. Gentleman to suggest that it asked for one view and then ignored it.

David Heath: I do not think I said that it asked for one view and then ignored it. I said that it asked for the views of the body that I believe has some importance in the context of Northern Ireland, and chose not to accept its advice. I believe, therefore, that it is perfectly proper for me to quote what it said about the Government’s position in support of my position, because the commission is so strongly in support. Paragraph 6 of its submission states:
“Given the exception of Northern Ireland from the scope of clause 26, the Commission limits its comment on the matter to expressing its view that, in terms of the values underpinning the legal traditions in UK jurisdictions, any measure that tends to undermine the requirement for procedural fairness in the trial process may threaten the presumption of innocence, diminish confidence in the integrity of the courts, and increase the likelihood and severity of miscarriages of justice.”
That is a potent argument against the Government’s proposal.
I shall deal quickly with new clauses 28 and 30, which deal with the Northern Ireland extension, and amendment (a), tabled by the hon. and learned Member for Harborough. He has quoted a letter from the chairman of the Criminal Cases Review Commission. We have to use the wretched word “stakeholder” again. What stakeholder is more important in the particular case before us than the Criminal Cases Review Commission, which is the only body that can actually deal with these matters? The commission states that it understands and accepts what the Government are proposing, but that the proposal is drafted so badly that it needs revision. The hon. and learned Gentleman has put that down as amendment (a)—a revision which the chairman of the Criminal Cases Review Commission believes is essential to the proper working of his commission and the process.
How on earth can the Government claim to have taken a reasoned and proper view of the drafting of the amendment if they disregard the body that they created and that they require to administer the consequences of the legislation, when it says that it cannot work effectively without an amendment? Again, the chairman of the commission’s comment is pretty damning:
“The commission does not oppose this amendment in principle, but we do regard its drafting as seriously defective.”
In the terms of the chairman of the commission, “seriously defective” is about as strongly expressed as it is possible for it to be. Surely, the Government ought to say, “Hang on a minute, perhaps we have got this slightly wrong. We know what our intention is, but if the Criminal Cases Review Commission says that this is ‘seriously defective’, we ought to think again.” That would be the sensible approach for them to take, but we have not heard that recognition so far on the part of the Department.
In conclusion, I welcome the fact that the Government, in their amendments to clause 26, have moved from their initial position, but to my mind no justification has been established for the clause. I hope that I am correct in understanding the hon. and learned Gentleman to have indicated that he would seek to oppose, not amendment 207, but clause stand part, because it is the clause that is the problem, not the amendment. If he does so, I will certainly join him in opposing the clause, because we have not yet heard any justification for this fundamental change to the Court of Appeal and the legislation that prescribes the way in which it works. We know that every respondent to the Government has said that they are not convinced by the Government’s case. I do not believe that, in their heart of hearts, the Government want this measure either. It is left over from the previous Administration. It would be better, and I think that face would be preserved rather than lost in the process, if it were quietly dropped.

Harry Cohen: I want to take the opportunity to put on the record the view of Liberty on this part of the Bill. The organisation states that:
“The Government’s current proposals would prevent a conviction being quashed where there has been serious abuse of process even where, once quashed, the Court of Appeal would currently order a retrial.”
Liberty have made a good summary of the Government’s position,
“the Government’s policy position boils down to the following argument:
‘to quash a conviction where there is strong evidence of guilt, without ordering a retrial, will bring the criminal justice system into disrepute, rather than protect its integrity. According to that argument it is wrong to punish the public and deny justice to the victim in this way; if the system or those who operate it are at fault it is they and not the public which should be punished or required to learn lessons.’”
Liberty goes on to say that in its view, the position is not as black and white as that. It states:
“In reality, those cases in which this power to quash convictions is used involve very serious failings either before or at trial, or serious illegality on the part of the prosecution or police... Those who enforce the law should also obey the law and should not benefit from breaches of it. It would be contradictory for the state to take advantage of a breach of the law which it itself has committed.”
Liberty continues:
“the power for the Court to check serious illegality and abuse of process by the Executive”
is an important constitutional check on the Executive. It points out:
“We are concerned that, once the Court of Appeal’s power to quash a conviction outright where there has been serious malpractice on the part of state authorities is removed, the next step would be to take that power away from the courts of first instance. The power to stay proceedings as an abuse of process is an important constitutional safeguard which should not be restricted or removed.”
On that point, will the Minister say that there is no intention to take that power away from the court of first instance?
The Government’s explanatory notes state:
“It would be for the Court to form their own view as to guilt on the evidence available to them”.
Liberty argues:
“This would represent a fundamental change of the Court of Appeal’s role and the usurpation of the role of the jury in determining guilt.”
It states that Liberty
“would not support a statutory formulation which meant that any procedural error or illegality by the State led to the conviction being quashed.”

Maria Eagle: I know that my hon. Friend is seeking to put on record what Liberty has said, but does he accept that it was referring to the clause as originally drafted, and that amendment No. 207 substantially answers those concerns?

Harry Cohen: I was going to make that point. I do understand that.
Liberty continued:
“Rather than legislation which takes an absolutist position on either side, we believe this to be an area where the only sensible way to proceed is to trust the Court of Appeal to make sensible decisions on a case by case basis.”
That is exactly the point of the amendment, which I welcome. It will give the Court of Appeal a little more flexibility.
As a layman I can understand the Government’s not wanting convictions to be quashed for procedural reasons where there is obvious guilt. Most of the public would take that view. I wish to say only that, where there have been serious procedural mistakes or deliberate malfeasance—rigged evidence or whatever—that must surely prompt the reasonable doubt that the Court of Appeal would have to assess in its interpretation of whether someone is obviously guilty. Again, I ask for an assurance that my view on that is correct.
The Minister mentioned mischief, and we can talk about people getting off when they are obviously guilty by using procedure. But there can be another mischief at play: if the prosecuting authorities and the police present rigged evidence or use procedure wrongly. I cannot see anything in the Bill that says there will be punishment for that. If somebody is out of line in court, they are done for contempt of court. Well, quite frankly, rigged evidence is contempt of court. In the balance of things, if the Government are to make the change in question, which I can go along with, notwithstanding what has been said and my being a layman, there should be a balance to include punitive action for those whose misdeeds have been a contempt of court.

Charles Walker: I, too, am a layman, and not as distinguished as my colleagues on both sides of the Committee. I have no legal training, but I am concerned about clause 26.
For the public to have confidence in the legal judicial system, they need to be reassured that the players within the system are operating to the highest standards and levels of excellence, not taking short-cuts and making mistakes. It is incumbent on the police, the Crown Prosecution Service, barristers and the judiciary to operate to the very highest standards of professionalism. If, in the process of bringing a case to court and processing that case through the court, mistakes were made and the conviction may be unsound or is based on not the full facts, or if process errors have been made in reaching the conviction, it is not unreasonable to review that process and order a retrial.
I become concerned when we, as politicians, talk about obvious guilt—“Well, the defendant is obviously guilty, so there’s no need for a retrial.” There are many cases that go to court where many of us could argue that the defendant is obviously guilty. We used to do it in the middle ages, saying, “He’s obviously guilty, so cut his hands off, cut his head off because we don’t need to waste everyone’s time.” But we have advanced since then, and we have processes. Those processes must be followed and respected, and people will not respect or follow them if they know that their failings will not carry consequences. I would like to put my concerns on the record.

Maria Eagle: On the point about the middle ages and assuming that people are guilty, the provisions and the changes that we are making to amendment No. 207 are only brought into play where it is absolutely clear to the Court of Appeal, on the evidence available to it, that there is no reasonable doubt about the guilt of the appellant. For example, he may have pleaded guilty at first instance, or his grounds for appeal may not challenge the issue of whether or not he is guilty, so this measure is not a resort to the lynch mob. I hope that the hon. Gentleman accepts that.

Charles Walker: I appreciate that, but clearly if the proper process has not been followed but the gentleman is guilty, he will be found guilty again at a retrial. However, holding the retrial would demonstrate that if the proper processes are not followed by those involved in the first trial, there will be consequences. A retrial will have to be gone through at great expense to the public purse and great tediousness to all those involved, but in my view that is why we have a legal system. Even when it becomes difficult and annoying and tedious to respect that legal system, it needs to be cherished. I feel that in some small way the clause undermines excellence in the legal system and may actually promote short-cuts and a certain sloppiness that we could do without.

Maria Eagle: We have had an extensive and wide-ranging debate, as one would expect on such an important matter. I shall do my best to deal not only with amendments Nos. 100 to 102 and amendment (a) to Government new clause 28, to which the hon. and learned Member for Harborough spoke, among his other presentations of his views, but with some of the points that have been raised during the debate by Members on both sides of the Committee.
By those who have opposed not only the clause as it was originally written but the amendments to the clause—those who think that the clause should not stand part and that we should leave the law as it is, which I think is more or less the position of the Opposition—the view has been expressed that the provisions have been plucked from the air as a quick press release by the Government in response to some sort of pressure, that they are an attempt to look tough. In fact, there has been an extensive period of consultation lasting a number of years.
Long before I became a Minister in the Department and long before the Ministry of Justice existed, consultations were going on. It is not something that has been plucked from the air as some sort of faux response to a concern that does not really exist. To pray in aid, I should like to quote from a couple of reports. The July 1993 report of the Royal Commission on Criminal Justice said that nine out of 11 members
“believe the Court of Appeal should not quash convictions on the grounds of pre-trial malpractice unless the court thinks that the conviction is or may be unsafe. In the view of the majority, even if they believed that quashing the convictions of criminals was an appropriate way of punishing police malpractice, it would be naïve to suppose that this would have any practical effect on police behaviour. In any case, it cannot in their view be morally right that a person who has been convicted on abundant other evidence and may be a danger to the public should walk free because of what may be a criminal offence by someone else. Such an offence should be separately prosecuted within the system.”
Lord Justice Auld, in a 2001 report on his review of the criminal courts in England and Wales, said:
“In my view, consideration should be given to amendment of the present statutory test to make clear whether and to what extent it should apply to convictions that would be regarded as safe in the ordinary sense of the word but follow want of due process before or during trial”.
The Government are responding to a long-standing concern among some practitioners that there is an issue. The measure is not something that has been plucked out of the air as the latest cause to try to show that the Government are being tough on crime and tough on the causes of crime. It is not merely that. There is an issue, which is acknowledged by some practitioners.

Charles Walker: I could have some sympathy for the view that if someone makes a purely procedural error in prosecuting a case, there might be an argument for not going for a retrial. I am not convinced, but I would have some sympathy. But if someone involved in a case committed a criminal act as part of that case, but it still was not felt that there should be a retrial, I would be extremely worried. I cannot believe that the Minister is seriously arguing that point.

Maria Eagle: I have not said anything about retrials yet, although I am about to.

Edward Garnier: If we are to accept the logic of the hon. Lady’s argument in relation to the support that she finds for it from some of the members of the Runciman commission in 1993, presumably the next step that the Government wish to take is to prevent applications being made on the grounds of abusive process before trial. She cannot logically argue for one and still permit me to prevent the case from going on ab initio.

Maria Eagle: I am merely praying in aid some of those comments to show the Committee that this is not a measure that has just been plucked out of the air by the Government as the latest way to demonstrate that we are tough on the causes of crime.

Edward Garnier: Let us not worry about Tony Blair’s rhetoric. He has been airbrushed out of the Labour party’s consideration. Let us just consider the merits of the hon. Lady’s argument. They are that in certain circumstances the Court of Appeal should not concern itself with the procedural misconduct that has gone on; if the facts suggest guilt, the conviction should be upheld. If that is right, why then is she permitting—there is no proposal here to prevent it—the continuance of the procedure by which defendants’ lawyers can apply to the trial judge to prevent the case from continuing because of abuse of process?

Maria Eagle: What we have before us relates to appeals. We do not have any proposals and I do not know of any proposals to make the sort of changes that the hon. and learned Gentleman suggests. I do not seek to do so. We are seeking to deal with a small issue of long-standing concern to practitioners as well as to politicians. The quashing of convictions, where people are plainly guilty, which are forced upon the Court of Appeal because of the current state of the law, whether or not it thinks it correct, gives rise to serious concerns in the few cases where that happens. They bring the criminal justice system generally into a great deal of public disrepute.

Edward Garnier: If the Minister’s amendment is made, let us assume that the facts that would permit the Court of Appeal to uphold a conviction despite misconduct would be available to the trial judge and the defendant’s team before trial. On her case, the Court of Appeal must uphold the conviction, even though the cases of misconduct had occurred in the conduct of the prosecution, either beforehand or during the course of the trial. What is the logical difference in upholding the conviction, despite the prosecution’s misconduct, before the Court of Appeal, but not before the judge in the first instance? The concept is the same: the court will not permit misconduct to override the rule of law. Why should there be a difference?

Maria Eagle: I am still not convinced that I totally understand the point that the hon. and learned Gentleman is making—
 Mr. Garnier rose—

Maria Eagle: If the hon. and learned Gentleman wants to try again, I will give him one more chance. It might just be that because it has been a long day, it is too late for me to understand his point, or it might be that he is just not making himself clear—I am not sure which.

Edward Garnier: It might be a combination of both those things. There is a procedure within the criminal justice system that allows a defendant to apply to the court to stop the prosecution because there has been an abuse of process, some form of misconduct, some withholding of evidence that the Crown wishes to use, or some form of misconduct by the police. Armed with the evidence of that abuse of process and misconduct, the defendant applies to a judge and says, “Look at all this. I can’t possibly have a fair trial. Stop it.” The judge will say, “Yes, you have been mistreated. The procedure has been misapplied. The police have misconducted themselves and a host of other matters have been brought to my attention that makes the continuance of this criminal process wrong. I will stop it.” The Minister is only transferring those facts to the Court of Appeal after the event. A trial can be stopped before the event under the current law through an injunction. However, the Minister is saying, “I do not see a connection between the principles that will stop a trial before trial, and those that will uphold a conviction based on a case that has been abused.”

Maria Eagle: No, I was saying that I did not understand the point that the hon. and learned Gentleman put to me. I hope that I now understand a little better than I did before. There is a distinction. In the first instance, there has not been a decision about guilt. The evidence has not been heard. The defence might make a submission about abuse of process, and it is then for the judge to decide whether the trial will go ahead. If the prosecution does not agree with the findings on which the trial is stopped, there is now a provision whereby it can appeal to get the trial restarted. With clause 26, we are dealing with an appeal after the event, when there has been a finding of guilt in one way or another, and with a small number of cases in which it is clear to the Court of Appeal on the evidence available that there is no doubt about guilt. I understand that both Opposition parties do not see the need for that. They have made that clear and it is a perfectly understandable and legitimate point of view. The Government, however, do not agree.
The hon. Member for Broxbourne asked why we could not just have retrials. Retrials might well be appropriate in some cases. In many cases, they may be the way to deal with issues that have arisen that make a conviction unsafe. However, that system does not always work. For example, it might be impossible to have a retrial because of the passage of time, the death of a witness or the availability of a witness. Some cases come to the Court of Appeal many years after the original conviction. Others take less time to come to court, but people can die or become unavailable as witnesses very suddenly. It is not always possible for a retrial to be the answer.
Even when a retrial is practical, there can be other concerns, such as the effects on victims or witnesses of having to go through the entire legal process again. That can sometimes be too much for them. Retrials do the job in some cases, but they are not the only way to ensure that matters are dealt with properly.
The hon. Member for Somerton and Frome suggested that the Government amendments to clause 26 would require the Court of Appeal to retry the case or to change fundamentally the role of the Court of Appeal. I do not accept that. The Court will only consider cases in which it is absolutely clear from the evidence available that there is no reasonable doubt about guilt—[Interruption.] We are talking about the new version of Government amendment No. 207, rather than the original one.
I think that that answers many points made by hon. Members. They have dealt with some of the issues on the basis of the clause’s original wording. They have not acknowledged that Government amendment No. 207 changes the effect of clause 26. It gives more discretion to the judiciary, which will deal with the matters concerned, particularly in respect of the procedural irregularity. My hon. Friend the Member for Leyton and Wanstead acknowledged that after I intervened while he was relating the views of Liberty to the original clause.

David Heath: I do not entirely accept what the Minister says about Government amendment No. 207. Undoubtedly it changes the threshold and the test that the Court of Appeal must apply, but it still puts the Court in the position of determining the guilt or otherwise of the appellant. The original wording required that the Court of Appeal be satisfied that the appellant was guilty. Now the Court of Appeal must think that there is no reasonable doubt about the appellant’s guilt. That is not a change of kind; it is simply a change of threshold.

Maria Eagle: Perhaps the hon. Gentleman has forgotten what I said in my original remarks, which now seem to have been made some time ago—[ Interruption. ] I am glad to hear it. The intention behind the change is to make it clear that the Court of Appeal is an appeal court and is not supposed to retry entire cases. I do not know whether it will assist Committee members if I make it clear that during the formulation of the Government’s amendments to clause 26, which are now found in amendment No. 207, we took the opportunity to clarify the senior judiciary’s views with them directly.
I hope that that deals with some of the issues mentioned by Committee members in respect of the points made by Professor Zellick, who wrote to all Committee members about the Criminal Cases Review Commission’s views. As I said, it is quite clear that the professor does not suggest that the clause is unnecessary but has concerns about the wording. We are now coming to amendment (a) to Government new clause 28, which was tabled by the hon. and learned Member for Harborough. That amendment would have put the wording suggested by Professor Zellick into the clause, thus requiring the Court of Appeal to be satisfied that to disregard a development in the law would not give rise to substantial injustice. That test has been applied by the Court of Appeal when deciding whether, exceptionally, it should not disregard such a development.
The Criminal Cases Review Commission supported the proposed addition of those words, but the Government are not persuaded that they are desirable or even appropriate, partly because the meaning of the phrase “substantial injustice” is insufficiently clear to the Court to give it effective guidance in exercising its discretion, or to the Criminal Cases Review Commission when assessing how the Court might do that. If the Court is required to satisfy itself that exercising its discretion would not create an injustice, one must wonder what it normally spends its time doing. The implication is that it spends its time creating injustice in other circumstances when it is not required to consider such a test. There is a great lack of clarity about the meaning of the phrase, which is why it has not been possible for us to accept the wording proposed by Professor Zellick.

Edward Garnier: The Minister has the letter. If she goes to the penultimate paragraph on page 3, she will see that Professor Zellick says:
“We explained our thinking to the Government prior to the tabling of the amendment and we are disappointed that our reasoned arguments have not found favour.”
It is one thing for the Minister to suggest what she has outlined to members of the Committee in general, and to me in particular, because I tabled amendment (a), but she has had since June, or whenever she was made a Minister in the Department—

Maria Eagle: July.

Edward Garnier: The Minister has had since July to engage in a discussion with Professor Zellick about why that form of wording is unclear. If I may say so, it is no good at this stage of proceedings to complain that it is unclear. I will take that complaint as it is intended, but for goodness’ sake, the Minister has had four months to ask Professor Zellick to explain himself. This suggests that nothing has been done in that direction.

Maria Eagle: I do not accept that nothing has been done in that direction, or that there has not been careful consideration of the wording suggested by Professor Zellick. Of course there has, but, as I said, we have also taken the opportunity to clarify the views of the senior judiciary with them directly. Government amendment No. 207 reflects the work that has gone on. One of our concerns about Professor Zellick’s formulation relates to his use of the phrase “substantial injustice”, which we do not think helps. The purpose of the change from the clause as originally published in the Bill to new clause 28 is to give the court wider discretion to decide when it is appropriate to take notice of a change in the law, according to the circumstances of an individual case. That is the purpose of what we have been doing.

David Heath: The hon. Lady has been very patient with us, but she says that “substantial injustice” is a difficult thing for a court to construe. Does she think that “seriously undermine” is any easier?

Maria Eagle: It is acknowledged by Professor Zellick himself that “substantial injustice” has no clear meaning.

David Heath: Nor does “seriously undermine”.

Maria Eagle: We have taken the view that new clause 28 is worded sufficiently well to deal with the points with which it is designed to deal. Of course we have taken into account the representations that we have received. Had we felt that Professor Zellick had come up with a better way of putting it, we would have had absolutely no reason not to adopt the proposal, but, unfortunately, we just do not believe that his formulation assists. That is a judgment for Ministers to make at the end of the day.
 Mr. Burrowes rose—

Maria Eagle: I will give way, but I want to get on.

David Burrowes: Does this not illustrate to the Minister that tinkering around the edges with a fundamental principle of law that affects the rule of law means that we have these problems of definition? This is best left to common law and the practice of the Court of Appeal, without trying to legislate.

Maria Eagle: We introduced new clause 28 as a result of concerns raised with us by the judiciary during the consultation on quashing convictions, so I do not accept that we are tinkering with the law. To the extent that we are tinkering with the law, we are doing that because judges have asked us to do so. The hon. Gentleman ought to take that into account when he makes his remarks.
May I get on to dealing with amendments Nos. 100 to 102? I think that the hon. and learned Member for Harborough acknowledged that one or two of them were seeking to deal with clause 26 as it was originally drafted. I do not know whether he prefers Government amendment No. 207 to the original provision. I know that he will vote against clause stand part, if there is a vote, but I hope that he will accept that the formulation in Government amendment No. 207 deals with some of the points addressed by his amendments, so perhaps we are not as far apart as the debate might suggest.
Amendment No. 100 would impose conditions on new subsection 1(A) so the court would need to have certain information certified by the trial judge. The hon. and learned Gentleman is trying to make the same point about the court not having to retry the whole case at the first instance but it is not clear what would be gained by this certification. The evidence was sufficient to prove the prosecution case. If it was incapable of proving the prosecution case, the first instance judge would have had it withdrawn; certainly the defendant would not have been found guilty. On the other hand, if the judge is being invited to express his own opinions on the strength of the evidence, one wonders what standard he is expected to apply. Amendment No. 100 does not assist in that respect. Obviously, the hon. and learned Gentleman will expect me to say that we prefer Government amendment No. 207 to his amendments.
Amendment No. 101 appears to give the Court of Appeal a discretion to order a retrial or to quash a conviction in cases where there has been serious misconduct by anyone involved in the investigation or prosecution of the offence but the court can, and in fact must, quash a conviction when it thinks it unsafe and will continue to do so if it thinks it would seriously undermine the proper administration of justice to do otherwise. If it does quash a conviction, it may order the appellant to be retried if that is appropriate in the interests of justice. That will not be changed by the current formulation of clause 26.
Amendment No. 102 provides for the referral of serious misconduct to the Attorney-General by imposing certain requirements on the attorney in cases so referred. It seems to require the Attorney-General to consider as it talks about initiating or not initiating. It is a requirement to consider. It is not clear how far, if at all, it differs from a requirement to consider taking proceedings that the Attorney-General would already have, nor is it clear what would be gained by requiring the attorney to consider the possibility of initiating a prosecution for, say, perverting the course of justice where such a prosecution was appropriate. It is a bit unclear but I suppose it is the best way of putting it.
As I have already said that we prefer Government amendment No. 207 and the consequential amendments Nos. 208 and 209 to the hon. and learned Gentleman’s formulation, I hope that he will be persuaded to ask leave to withdraw his amendment, not least because it is not the precise formulation of clause 26 that he is concerned about but the fact that it is there at all. He clearly intends to vote against the clause, like the hon. Member for Somerton and Frome. 
I hope that I have dealt with the amendments. I invite the Committee to support the Government amendments and I ask the hon. and learned Member for Harborough to withdraw his amendment. I ask every member of the Committee to vote for clause stand part.

Edward Garnier: I appreciate that the Government would rather we did not have to have this debate and that the amendments we have tabled would go away. Unfortunately, the argument cannot go away even if, procedurally, my amendments will do so.
Before I deal with the Minister’s arguments, I want to thank the hon. Members for Somerton and Frome and for Leyton and Wanstead and my hon. Friend the Member for Broxbourne for their contributions to the debate. In many respects, this is not a party political issue; it is a matter of genuine concern across the Floor of the House and of deep concern to all those who are interested in justice as, I am sure, is the hon. Member for Tooting, who is a former director of Liberty. He has moved on from that—

Sadiq Khan: Former Chair.

Edward Garnier: Three cheers. There we are.

Sadiq Khan: Apology accepted.

Edward Garnier: I think that that is a conviction that is probably unsafe. In any event, it is a matter that all of us, across the Floor of the House and on both sides of the Committee, are concerned about.
Sometimes, convictions which may, on the evidence, be apparently safe, are, in the wider circumstances, unsafe and should not be sustained. The Government appear to take a different view, whether as a matter of principle or as a way of chasing popularity—it is difficult to discern. I am yet to be persuaded that the Minister has taken on board or dealt effectively with any arguments that we have made on the difference between the Court of Appeal striking down the conviction that is unsustainable on grounds of abuse, and the making of an application before the first instance judge on the basis of abuse. I am not in the least impressed by the suggestion that the big difference is that there is no finding of guilt at the abuse stage—I do not think that that was the Minister’s best point, if I may say so. We are talking about an issue of principle, and that does not answer the principle.
The Minister mentioned that there are a number of arguments against retrial, such as the deaths of witnesses and the stress of witnesses who have to go through the process again, but the Court of Appeal must consider such things all the time. The prosecution must consider such things, for example, when it makes an application for retrial when a jury cannot reach a decision. They are not strange and new concepts for the courts to deal with—they deal with them every day. If the absence of witnesses through either illness or death makes a trial difficult, the Court of Appeal will presumably take that into account and not order a retrial and quash the conviction, but that is a judgment it must make on the facts before it.
I am not at all sure that there is much more I can do to persuade the Government of the error of their ways—I must leave it to others. In defence of Professor Zellick—I can assure the Committee that he does not need me to defend him—one has only to look at his bullet points in the letter to see how baseless are the Minister’s complaints about his reference to substantial injustice. It might be that the Government do not want get to grips with the arguments, but that is not to say that they are not arguments of substance. Bullet points 2, 4, and 7 say that it
“is true that the expression ‘substantial injustice’ even in this context suffers from some uncertainty”,
We can see that that is a perfectly good academic and practical argument to put forward, and it needs to be dealt with. The Government have had since July to deal with it, but they do not appear to have done so in any sense or manner.
I have said enough. I hope that the House of Lords will give the clause a thorough grilling. Even if we cannot stop the clause, we shall express our dissatisfaction with it at this early stage.

Amendment agreed to.

Amendments made: No. 208, in clause 26, page 19, line 38, at end insert—
‘(2A) In section 13 (disposal of appeal against verdict of not guilty by reason of insanity), after subsection (1) insert—
“(1A) For the purposes of subsection (1)(a), the verdict shall not be regarded as unsafe for a reason unrelated to the correctness of the finding of insanity if the Court think that there is no reasonable doubt that the accused did the act or made the omission charged.
(1B) Subsection (1A) does not require the Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the verdict to stand.”
(2B) In section 16 (disposal of appeal against finding of disability), after subsection (1) insert—
“(1A) For the purposes of subsection (1)(a), a finding shall not be regarded as unsafe for a reason unrelated to the correctness of the finding that the accused is under a disability if the Court think that there is no reasonable doubt that the accused did the act or made the omission charged.
(1B) Subsection (1A) does not require the Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the finding to stand.”’.
No. 209, in clause 26, page 20, line 5, leave out ‘against conviction’ and insert ‘under this Part’.—[Maria Eagle.]

Motion made, and Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to.

Clause 26, as amended, ordered to stand part of the Bill.

Clause 27 ordered to stand part of the Bill.

Clause 28

Review of sentence on reference by Attorney General

Maria Eagle: I beg to move amendment No. 79, in clause 28, page 20, line 22, leave out ‘In’.

Frank Cook: With this it will be convenient to discuss Government amendments Nos. 80 to 83.

Maria Eagle: The purpose of amendments Nos. 79 to 82 is twofold. First, they make it clear that when the Attorney-General refers an unduly lenient life or indeterminate sentence to the Court of Appeal, the so-called double jeopardy discount is abolished in respect of any aspect of the sentence that is varied by the Court of Appeal. Therefore, if the Court of Appeal were to increase not only the tariff but also another aspect of the sentence, the fact that the person is being sentenced twice would not be taken into account on either point.
Perhaps it would be of assistance if I were to explain briefly the background to clause 28. It is concerned with appeals against unduly lenient sentences. Hon. Members may be aware that part 4 of the Criminal Justice Act 1988 enables the Attorney-General to refer certain cases to the Court of Appeal if the sentencing in the Crown court appears to have been unduly lenient. The Court of Appeal can then review the sentencing in the case and, where appropriate, increase the sentence.
When the Court of Appeal decides to increase a sentence in such a case it will, when calculating the sentence, often allow a discount on so-called double jeopardy grounds to take account of the offender’s distress and anxiety at being re-sentenced and having to await the outcome of the referral.
There has already been legislation in the Criminal Justice Act 2003 to prevent the Court of Appeal from giving such a discount in mandatory life sentence murder cases. We now propose to extend the prohibition to apply to other very serious offences for which an unduly lenient sentence was passed. It seems strange to an ordinary member of the public that when a sentence is increased because it has been unduly lenient, the offender should then get a discount in the increased sentence on the grounds of their distress at being re-sentenced. That is the point of the clause and the amendments.
The prohibition would apply in all cases where the Crown court has imposed a discretionary life or indeterminate sentence. The clause does not contain anything new in principle, in the sense that this has already been done in respect of mandatory life sentences. That discount has already been abolished, so there is a clear precedent for the clause.
Under the clause as drafted, where the Court of Appeal decides to increase the minimum period ordered by the Crown court to be served under a life or indeterminate sentence, or, indeed, where it alters the sentence in another way, no discount may be given.
The amendments have a largely technical flavour. They have two purposes: primarily, they ensure that when the Attorney-General refers an unduly lenient life or indeterminate sentence to the Court of Appeal, the discount cannot apply to the Court’s review of any aspect of the sentence, not just the tariff. In doing so, they also remove a technical ambiguity in the clause as it appears in the Bill.
The clause as currently drafted followed the structure of existing section 36(3A); that is, it focused only on the Court of Appeal’s variation of the tariff or minimum term. That is because section 36(3A) currently applies only to mandatory life sentences, so the minimum term is the only aspect that would be under review by the Court of Appeal. However, now that the provision is to be extended to include discretionary life and indeterminate sentences, the Court of Appeal may in limited circumstances want to vary another aspect of the sentence. For example, in some cases covered by the clause, the Court of Appeal might decide to increase an indeterminate sentence to a discretionary life sentence. The amendments will ensure that, as was always intended, the discount will not be available in relation to any aspect—not just the minimum term—of the sentence reviewed by the Court.
Government Amendment No. 83 applies to provisions for the unduly lenient sentencing appeals scheme in Northern Ireland, and we will be tabling further amendments in due course to fully extend provisions in clause 28 to Northern Ireland, as the Northern Ireland Office has asked us to do. I commend the amendments and the clause to the Committee.

Edward Garnier: The amendments are perhaps not ones that I would have tabled, but they are not sufficiently egregious as to require being voted against.
In the context of clause 28, will the Minister agree with me that we should cease the practice that has grown up over the last few years of the Attorney-General, or some other Government Minister, inviting a colleague to table a written parliamentary question calling for a list to be published of individual judges who have been the subject of unduly lenient appeals? I hope that the Minister knows that, once or twice a year, articles appear in several of the tabloids in which individual judges are picked out and subjected to personal criticism—often there are photographs of them. She will be able to imagine the sort of headlines that go with such stories. They are based on written parliamentary questions from Government members to the Minister. She knows the procedure—the planted question. They are designed to cause difficulties, among other things, for those judges.
Nobody knows why a judge in any given case passes a particular sentence, apart from the judge themselves, those listening in court to his or her sentencing remarks, and the Court of Appeal, which will have listened to the arguments of the Attorney-General when the case of the unduly lenient appeal was advanced. If we are to have a system under which judges’ unduly limited sentences are to be appealed—the Conservatives introduced that system when they were in Government—let us leave it at that. However, we should not resort to the organised public abuse of individual judges.

Alun Michael: I understand the point that the hon. and learned Gentleman is making about not castigating people generally and about the way in which the tabloid media can trivialise, if you like, what are very important issues. However, does he not find it shocking that in some two thirds of the cases that the Attorney-General takes to appeal, the finding of senior judges—not the media or politicians—has been that an unduly lenient sentence was passed? We should bear it in mind that such a finding has to pass the test that not only was the original sentence unduly lenient, but unreasonably so. Is that not a matter of genuine public concern?

Edward Garnier: The public concern is dealt with by having the process that the Conservative Government introduced when it was in office. That process permits unduly lenient sentences to be appealed through the office of the Attorney-General.

Alun Michael: It does indeed deal with the mischief of the particular sentence, but is the hon. and learned Gentleman not shocked by such a proportion of unduly lenient sentences? That is a criticism from senior judges, not politicians or the media.

Edward Garnier: No, I do not find it shocking. What I find welcoming is that there is a procedure that deals with the issue. Nor do I find it shocking, for example, that the Court of Appeal quashes convictions. Its purpose is to provide a proper braking system, or a sieve, to prevent injustice either to a wrongly convicted or overly sentenced defendant, or to a victim who sees a defendant given an unduly lenient sentence. However, we should not engineer a system whereby planted questions lead to the unnecessary abuse of individuals.

David Heath: I should find it shocking if the Court of Appeal were not prepared to act on a high proportion of the referrals from the Attorney-General, because that would suggest that the Attorney-General was bringing forward trivial issues of leniency, rather than executing his or her proper judgment in the case and putting forward those referrals for which there genuinely was a case to be answered.

Edward Garnier: I think that I probably agree with the hon. Gentleman. All I wanted to say, and I have said it several times, is that we should not allow planted questions to lead to the unfair abuse of judges. I say that because I had been sitting in court, and on adjournment I met judges who had been listed in The Sun or whatever newspaper it is that carries those lists. If the Committee had seen the anguish of those people, who felt that their integrity and judicial conduct was being savaged quite improperly, it would understand what I am saying. I do not suggest that Ministers deliberately set out to boil the reputations of individual judges, but it is a consequence of those planted questions. Of course, as the right hon. Member for Cardiff, South and Penarth says, there is a public interest in knowing that the Court of Appeal is increasing sentences that are unduly lenient, but we do not need to go on from that and pick out individual judges and pillory them as though they were proper subjects of personal abuse.

Maria Eagle: I am not in a position to put any boundary around what individual Members might ask in their parliamentary questions, but as a Minister, I certainly should not seek to have such a question asked. I hope the Committee heard the Minister of State, Ministry of Justice say earlier that he did not seek to question the sentencing or behaviour of individual judges as part of the way in which he does his job. The Secretary of State feels the same way, so I hope that I can give the hon. and learned Gentleman the assurance that Ministers in the Ministry of Justice would not seek to do such a thing. That is not to say that individual Members do not have a perfect right to put down any question to any Department. That is part of parliamentary scrutiny, and I hope that my answer satisfies the hon. and learned Gentleman.

Amendment agreed to.

Amendments made: No. 80, in clause 28, page 20, line 22, after ‘sentencing)’ insert ‘is amended as follows.’.
No. 81, in clause 28, page 20, line 24, after ‘to’ insert 
‘a case in which the judge made’.
No. 82, in clause 28, page 20, line 25, leave out ‘order under that section’ and insert ‘sentence’.
No. 83, in clause 28, page 20, line 36, at end add—
‘( ) In subsection (9) after paragraph (b) insert ‘‘and
(c) the reference in subsection (3A) to an order specified in subsection (3B) shall be construed as a reference to an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001.” ’.—[Maria Eagle.]

Clause 28, as amended, ordered to stand part of the Bill.

Clause 29 ordered to stand part of the Bill.

Schedule 6

Her majesty’s commissioner for offender management and prisons

Edward Garnier: I beg to move amendment No. 161, in schedule 6, page 158, line 38, leave out ‘send’ and insert ‘lay’.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 162, in schedule 6, page 158, line 38, leave out ‘to the Secretary of State’ and insert ‘before both Houses of Parliament’.
Amendment No. 158, in schedule 6, page 159, line 1, leave out ‘Secretary of State’ and insert ‘Commissioner’.

Edward Garnier: The amendments all deal with the parliamentary accountability of the commissioner or, as is currently presented in the Bill, the absence of such parliamentary accountability. Some of us who were at the evidence session before the end of the last Session of Parliament will remember when I asked the commissioner whether he would prefer his reports to be laid before Parliament rather than given to the Secretary of State. I asked whether he would prefer to be in a similar position to an ombudsman or even a judge. Thereby, although he would be paid for and appointed by either the Crown or Government, the line of accountability would go directly from him to Parliament, not to a Minister.
That is why I have tabled the amendments, which would change the situation so that the commissioner would lay a copy of his report before both Houses of Parliament. They would delete the reference to the Secretary of State in that regard. It is a matter of constitutional accountability. That would undermine the work of neither the commissioner, nor the Secretary of State. It would get the Secretary of State’s fingers off the report so that they could not edit it before it gets to Parliament.
Under the Bill as it is currently drafted, a report from the commissioner will get before Parliament, but not before the Secretary of State has had a look at it. I think that the Secretary of State has no business interfering with the terms, wording or conclusion of any report that he may have. He can answer in Parliament for any remarks that the commissioner might make, but he should be given no editorial role or power to interfere between the completion of the commissioner’s report and its presentation to Parliament.

David Heath: My comments are in the form of an inquiry because I have not had the opportunity to do the research. It seems that there would be considerable merit in having a common statutory format for the appointment of those officers of the Crown. That way, we would not have to discuss the details of the form of appointment and removal from office because there would be a common form with which the House was content, until such time as it might choose to have a different form. Therefore, I ask the Minister whether that position is directly comparable to other offices that are appointed by the Crown and fill analogous roles elsewhere.

Maria Eagle: I would like to respond to the amendments that the hon. and learned Member for Harborough has proposed and hopefully reassure him that they are not necessary. Their purpose is to give the commissioner and not the Secretary of State the power to lay reports directly before Parliament. As he made clear, his intention is to try to increase the perceived independence of the commissioner and ensure that the Secretary of State cannot suppress or alter a report. I hope that he is reassured by what the incumbent said when giving evidence to the Committee; there has never been any instance in his time when the Secretary of State has sought to impinge upon his independence or interfere in any way with any of his reports. I hope that the hon. and learned Gentleman accepts that that is the case. I hope that, in resorting to some of his more flowery language, he was not suggesting for one moment that the current Secretary of State or indeed anyone has sought to do such a thing or to interfere with or suppress reports of the current prisons and probation ombudsman in any way. The situation was made clear in evidence to the Committee.
I recognise, of course, that the laying of reports by the Secretary of State might give rise to concerns about the commissioner’s independence. We sought to obtain views from the British and Irish Ombudsman Association on the best way to deal with the laying of reports and on who should undertake that task for different Parliaments. The association recommended that the new commissioner’s reports should be published by him in his own right, and that the Secretary of State should then be required to lay them before Parliament. That is what we have provided for in the Bill.
The constitutional arrangements set out in the Bill are therefore broadly comparable with those for other ombudsmen operating in similar situations to that of the new commissioner for offender management in prisons, whose post will exist once the Bill is on the statute book. There are various differences in detail that reflect the individual terms of reference of the different types of ombudsman, but the association certainly recommended that the arrangements were the correct way of proceeding.
An alternative view is that the Secretary of State is responsible to Parliament for such matters, and that he therefore ought to lay the report. We sought to make sure that there could be no question of a Secretary of State changing a report that he thought might be inconvenient, or delaying the laying of such a report. The Bill requires laying to take place as soon as practicable after receipt. The commissioner will be sponsored by and will report to the Secretary of State for Justice. It therefore seems right that that Minister should have responsibility for laying the commissioner’s report, but I can assure the Committee that there will be no question of interference or delay. I hope that the enables the hon. and learned Gentleman to withdraw the amendment, but clearly that decision is a matter for him.

Edward Garnier: I think that the Minister was a little too defensive at the outset. We are making law for the long term; we are not concerned with the individual holder of the office of Secretary of State at the moment. I am sure that the right hon. Member for Blackburn (Mr. Straw) would never suppress anything, and I have never suggested otherwise. However, we need proper lines of accountability and I happen to think that office holders such as the commissioner should not have to present things as difficult or anxiety-inducing as reports on the conduct of our prisons and on offender management directly to the person who is in charge of the political management of prisons. It would be better for the commissioner to report directly to Parliament, and then we can cross-examine the Minister on the report, or debate the report, at an appropriate time. It is a simple question of accountability.
I happen to disagree with the Minister, but I shall not press the amendment to a Division. I am not entirely satisfied with her response, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 30

Eligible complaints: general

Maria Eagle: I beg to move amendment No. 286, page 21, line 28, at end insert ‘; or
(c) a matter related to the provision of health care’.

Frank Cook: With this it will be convenient to discuss amendment Government amendment No. 287.

Maria Eagle: Clause 30 details the eligible complaints that the new commissioner might consider. The amendments change the method for excluding complaints about health matters and remove from the commissioner’s remit health care provided directly by a service. The purpose of the amendments is to reduce duplication and prevent overlap at the margins between the roles of existing commissioners and ombudsmen and the new commissioner for offender management and prisons.
The purpose of the exclusion in amendment No. 286 is to achieve the correct fit with the remit of the parliamentary commissioner and the health service commissioner responsible for dealing with complaints from prisoners and the public about health care matters. There is a clear advantage in the expertise of investigation and effectiveness of recommendations, and it is desirable that it reinforces the position of the prisoner as a service recipient on the same basis as any other citizen. We do not want the new commissioner simply to investigate any complaint from a prisoner if it is more sensible for the complaint to be dealt with by the parliamentary commissioner or the health service commissioner. To add such matters to the new commissioner’s remit could lead to duplication, confusion and rather invidious competition between the commissioners and the ombudsmen.

David Heath: I understand why the Government do not want competing jurisdictions between commissioners and ombudsmen, but would not it be better, in terms of organisation and ease of access, for the commissioner to refer cases on matters not within his remit to the health service ombudsman, rather than expect the prisoner to apply to someone completely different? A one-stop-shop approach would be just as appropriate to the prison system as to the general public.

Maria Eagle: That is effectively what will happen. There are already grey areas, and prisoners who might be better dealt with by the health service ombudsman might talk first to the current prison and probation ombudsman. Part 4 deals with having joint reports where that is sensible. We expect not to have hard and fast boundaries in the sense that someone will be sent away and have to start again; there will be sensible co-operation between the parliamentary commissioner, health service commissioner and the new commissioner. We are not trying to create or facilitate jurisdictional disputes, but seeking to make it easy to avoid them. Amending the Bill, rather than using an order under clause 30(4), as we had originally intended, will provide greater clarity regarding the new commissioner’s complaints remit. That must be sensible.
Amendment No. 287 will allow for the possibility of defining more clearly over time, and with experience, which matters of health care provision will be included in the new commissioner’s complaints remit. Some matters that are related to the provision of health care might go beyond the commissioner’s complaints remit. Such matters are not easily distinguishable and require negotiation between the new commissioner, the health service commissioner and other ombudsmen. I am sure that, in time, as they settle in with the new arrangements and the work that they do between them, it will become clear what sort of complaint should be dealt with by which process. There is no interest in us facilitating dispute or duplication at the boundaries between the ombudsmen’s remits, and we hope that the amendments make it clear where the boundaries should lie. Later provisions in part 4 deal with sensible arrangements for joint reporting and so on.

Edward Garnier: Before the Under-Secretary spoke, I had some misgivings, which have been allayed to some extent by what she said. I was fearful that the Secretary of State would, under amendment No. 287, simply redefine what the commissioner could look at in relation to health care and neuter him. Under clause 32—this feeds into the point made by the hon. Member for Somerton and Frome—the commissioner will have the remit to consider the eligibility of a complaint and can take action under subsection (3)(b), which states that
“taking, or facilitating the taking by another person of, any other action (such as mediation or conciliation) which the Commissioner considers may result in the resolution of the complaint”.
I do not know whether the Government believe that the words in brackets limit the other action to mediation or conciliation, but I hope that the clause deals with the concern that the hon. Gentleman and I had that the Secretary of State would simply cut the commissioner’s power to look into health care matters because that might be politically inconvenient. If the commissioner can refer matters to the health ombudsman or the appropriate office holder under clause 32, my fears are dealt with.

David Heath: I am not sure that my fears are entirely dealt with. I am reassured by what the Under-Secretary said, and the intention is clearly that the commissioner should behave in what we all consider to be a sensible way if a complaint can be better investigated by an alternative ombudsman. There will be grey areas, and the hon. and learned Gentleman is right in suggesting that one instance would be if an artificial barrier to appropriate health treatment were created in the prison system, because of physical barriers or the attitude of staff within the system. There will also be grey areas in mental health and drugs, which are current concerns in the prison estate, and the border between proper health provision and the proper province of the commissioner for offender management and prisons. Those grey areas should be elucidated in time.
The Under-Secretary rightly said that there is provision later in this part of the Bill for a thorough look at complaints, and I take it, as did the hon. and learned Member for Harborough, that clause 32 is a case in point.

Maria Eagle: Clause 42 is also relevant and will allows the commissioner to refer cases to the correct ombudsman.

David Heath: I am most grateful to the hon. Lady for her assistance. A health matter can be made ineligible under clause 32, a strict interpretation of which will prevent the commissioner from deciding that the appropriate action is to refer the complaint to another person. I accept that clause 42 might deal with the issue, and I will look at it in more detail.

Amendment agreed to.

Edward Garnier: I beg to move amendment No. 145, in clause 30, page 21, line 29, leave out subsection (4).

Frank Cook: With this it will be convenient to discuss Government amendments Nos. 146, 298, 299 and 305 to 309.

Edward Garnier: Amendment No. 145 would delete subsection (4), which gives powers to the Secretary of State to make orders specifying matters
“that are to be excluded...for the purposes of subsection (2).”
Subsection (2) defines by means of schedule 7 the extent of the remit of the commissioner when it comes to dealing with complaints, such as in determining what is and what is not an eligible complaint. This amendment is partly to do with my old concern about the Secretary of State having powers to make orders, and partly to do with wanting to know what the Government have in mind. What do they anticipate the Secretary of State might want to order to be excluded for the purposes of subsection (2)? It would be helpful to have that set out for the record.
In relation to Government amendment No. 146, I hope that the Minister is pleased to see that she has our support for something that the Minister of State has thought appropriate to propose, namely leaving out subsection (7), which states:
“An order under subsection (4) may make consequential provision (including provision modifying any Act or subordinate legislation, whenever passed or made.)”
I trust that the Government have now limited the power of the Executive to amend legislation with the stroke of a ministerial pen. I assume that the Minister of State has put his name to the amendment on purpose.

Maria Eagle: Yes.

Edward Garnier: Good. Nothing is more welcome than a sinner who repents. I look forward to seeing the Minister’s name on a lot more amendments of this nature in future. I will not deal with the remaining Government amendments in the group because I think that they will be more appropriately dealt with by the Under-Secretary.

Maria Eagle: It has taken us a long time to get here, but it is a first for the Committee that my right hon. Friend the Minister of State has signed one of the hon. and learned Gentleman’s amendments. I am not promising that that will ever happen again, but clearly it is something that we ought to celebrate. I can tell him, if he is interested, why my right hon. Friend and the Government wished to support his amendment. The additional power to modify other enactments provided by this provision will not be necessary when using the power to exclude matters from the complaints remit. There is a general power in clause 123(2)(c). We do not think that we will need to modify primary legislation with respect to all of this.
The hon. and learned Gentleman had some questions about what kind of excluded matters the Secretary of State might be considering and what kind of matters might be excluded under clause 30(2). I might be able to reassure him about our intentions. We have a working list of matters that we would expect to be excluded. For example, we intend to use the order-making power in clause 34(4) to exclude any matter within the jurisdiction of the Parliamentary Commissioner for Administration, a member of the Commission of Local Administration, the Scottish public services ombudsman, or the Welsh public services ombudsman. The measure is thus another way of ensuring that there is a clear boundary between the remits of the various ombudsmen. Therefore, we need a power just to exclude those matters that are within the remit of other ombudsmen.
We are also seeking to exclude some matters apart from other jurisdictions and other remits. For example, we want to exclude the conduct of the police from the remit of the commissioner, partly because we have the Independent Police Complaints Commission, which deals with those matters. We want to exclude from the complaints remit the commencement or conduct of proceedings before a court, because those would be matters for the court or legal professional bodies. We are seeking to address such issues. There is nothing sinister about the process. We are not seeking to exclude any complaint that might be found in favour of the prisoner, or any such thing. On that basis, I hope that the hon. and learned Gentleman will be reassured in respect of the concerns expressed through amendment No. 145, which we do not support.
The Government amendments are minor and technical. Among other things, they will remove the overlap with the general power in clause 123(2)(c), which provides the order-making power in the Bill. Powers in the Bill include a power to make consequential provision. The amendments also ensure that an order made under the powers in part 4 cannot encroach on matters within the legislative competence of the Scottish Parliament, which is, of course, very important—we do not want to do things such as that. As I have said, the Government amendments are minor and technical, so I hope that the hon. and learned Gentleman might be persuaded to withdraw amendment No. 145 and that the other Government amendments—and his amendment No. 146—will be supported by the Committee.

David Heath: I am grateful to the Minister for that elucidation. I entirely support her view that complaints against the police should be excluded, because otherwise, frankly, the commissioner would deal with nothing else, if my experience of complaints by those awaiting trial or those who have been convicted is anything to go by. Such complaints keep the investigatory services of the police forces fully engaged most of the time.
However, the other ombudsmen and similar bodies to which the Minister referred are almost word for word the list of persons and bodies given in the subsection to which she has helpfully drawn my attention: clause 42(6). Listed in that group is the health service commissioner for England. I am not trying to revisit the previous discussion, but I wonder why it was felt necessary to refer explicitly to health as an excluded item, when the other areas can be dealt with simply by the order-making power to which she referred to deal with the proper province of the other ombudsmen, which she suggested would also be in the excluded items. I am sure that there is a very good reason why one item has to be drafted one way and all the rest can be drafted another way, but perhaps we will have to wait for a later stage, or a letter, to discover that reason.

Edward Garnier: In the light of what the Minister said, I wonder whether she could publish the list of excluded matters. I do not suppose that it needs to be in the Bill, but it certainly needs to be made public so that we all know what we are legislating about and what the Government have in mind when it comes to considering the remit of the commissioner.
The Minister said that the Secretary of State would ensure that the commissioner would not deal with police matters. I am concerned about deaths in police custody. Schedule 8, which is titled “The Commissioner’s deaths remit”, says:
“A death of a person while in the custody, or under the control or escort, of prison officers or prisoner custody officers anywhere in the world.”
I am not sure about Government amendments Nos. 315, 316, 302, 304, 317 and 310 to 312, which we will discuss under that schedule, because I have not looked at them, although I know that amendments Nos. 315 and 316 deal with Scotland. I sincerely hope that Government amendments will not delete paragraph 2 of schedule 8, but we need a little bit of clarification from somebody. Operation Safeguard has been extended until the end of the year and I have no doubt that the Minister of State will be extending it until Christmas 2008, given the way we are going at the moment.
The official Opposition think that setting up the commissioner is a good thing. We want him to do a thorough job on behalf of the public and we ask the Minister for a bit of clarity about the commissioner’s remit in relation to the investigation of deaths in custody, especially police custody, and how that fits into what she told us a moment ago.

Maria Eagle: Those matters are already within the remit. In respect of the working list of excluded matters, which I will let the Committee see, I said that we were minded to exclude the conduct of police because that is what the Independent Police Complaints Commission will investigate. If a prisoner dies in a police cell, the death will be investigated by the IPCC. We would not propose to change the current arrangement—I hope that that clarifies matters.

Edward Garnier: I am not entirely sure that it does, because schedule 8 seems to say something else. Anyhow, I think that I have made the point that I wanted to get across. The Minister will have to try to explain paragraph 2 of the schedule to which I drew the Committee’s attention a moment ago. Having said that, this debate has served its purpose, because we are now going to get the working list published. However, will the Minister please publish it not just by sending Committee members a letter, but publicly, so that members of the public beyond the Committee can have some understanding of what is going on? The outside world will otherwise have to piece these things together like a complicated jigsaw puzzle. It would be useful for the list to be published on the Ministry of Justice website or some other place to which the public may have access.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 287, in clause 30, page 22, line 3, at end insert—
‘(6A) The Secretary of State may by order provide that matters of a particular description are, or are not, to be regarded for the purposes of subsection (3)(c) as matters related to the provision of health care.’.
No. 146, in clause 30, page 22, line 4, leave out subsection (7).—[Maria Eagle.]

Maria Eagle: I beg to move amendment No. 288, in clause 30, page 22, line 15, at end insert—
‘(11) For the purpose of determining whether a part of a complaint is eligible for the purposes of this Part, any reference in this section (apart from subsection (8)) to a complaint may be read as including a reference to a part of a complaint.’.

Frank Cook: With this it will be convenient to discuss the following: Government amendments Nos. 289 to 293.
Amendment No. 149, in clause 32, page 23, line 8, leave out ‘before’ and insert ‘after’.
Government amendments Nos. 294 to 297 and 303.

Maria Eagle: The Government amendments are all minor technical and drafting amendments to part 4. Among other minor points, they clarify how the commissioner is to handle partly eligible complaints and those complaints that are partly outside his remit and are therefore ineligible. I can go through the amendments in detail, if hon. Members will tell me which ones they want to deal with. However, I would rather stick with the fact that they are minor technical and drafting amendments and commend them to the Committee.

Amendment agreed to.

Clause 30, as amended, ordered to stand part of the Bill.

Schedule 7

The Commissioner’s complaints remit

Maria Eagle: I beg to move amendment No. 313, in schedule 7, page 160, line 1, leave out from first ‘under’ to end of line 2 and insert ‘—
(a) the Immigration Act 1971 (c. 77);
(b) section 62 of the Nationality, Immigration and Asylum Act 2002; or
(c) section 36 of the UK Borders Act 2007 (c.30).’.

Frank Cook: With this it will be convenient to discuss Government amendment No. 314.

Maria Eagle: As this method worked so successfully last time, I just want to say that these are minor technical amendments to schedules 7 and 8, which set out the commissioner’s complaints and deaths remits respectively. The amendments add a reference to section 36 of the UK Borders Act 2007, which provides for the detention of foreign national prisoners on the completion of their sentence. The amendments were necessary because of the new immigration legislation appearing on the statute book and on that basis I hope that the Committee can be persuaded to support them.

Amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 31

Eligible complaints: specific requirements applicable to all complaints

Amendment made: No. 289, in clause 31, page 22, line 17, after ‘ineligible’ insert ‘by virtue of this section’.—[Maria Eagle.]

Edward Garnier: I beg to move amendment No. 147, in clause 31, page 22, line 21, leave out ‘one year’ and insert ‘3 years’.

Frank Cook: With this it will be convenient to discuss amendment No. 148, in clause 31, page 22, line 29, leave out ‘three’ and insert ‘12’.

Edward Garnier: Clause 31 sets a limitation period for the bringing of complaints. Subsection (2)(a) provides a limitation period of no more than one year. After that year, the complaint is barred. I will read the relevant subsection so that the Committee understands what I am talking about:
“Those requirements are...that a period of no more than one year”—
my amendment would make it three years—
“has passed since the relevant person first became aware of the matters giving rise to the substance of the complaint”.
Amendment no. 148 deals with subsection (2)(c), which states that the requirements are that
“where the responsible authority has responded to the substance of the complaint following such a communication (whether by rejecting it or by addressing it in some other way), that a period of no more than three months has passed since it did so.”
I would substitute a period of 12 months.
First, I want to know why the Government have chosen a limitation period of one year for making an initial complaint, and a three-month limitation period for bringing a further complaint based on the adjudication. In civil law, a limitation period of three years is not unheard of. I appreciate that some torts have a limitation period of one year, but there is a procedure by which, if the complaint or the cause of action became known to the complainant only after that period has elapsed, the court has discretion to extend the period.
When we are dealing with prisoners, many of whom may be intellectually impaired, mentally ill or badly affected by substance abuse of one sort or another, one year will not necessarily for them to get their heads around the issues confronting them. Equally, three months is quite a short period of time for the typical prisoner—the typical person affected—to take advice or, off his own bat, to do something about the response from the responsible authority.
The amendments are not earth-shattering, but they are humane and sensible, and do not undermine the power of the commissioner to act properly in any given case, prevent him from rejecting complaints, or make him do things which he would not think proper in the ordinary course of. They would provide a little more justice.

David Heath: I have listened very carefully to the hon. and learned Gentleman; I think that there is a proviso in subsection (3) to give the commissioner the discretion to waive the time limits where it seems appropriate to do so. My concern is slightly different. I agree with him about the three-month period; I am not so sure about the 12 months’ initial complaint limitation, but three months following the response is a relatively short time, particularly in the context of many of the people who find themselves on the prison estate.
My question to the Under-Secretary of State for Justice is different. Perhaps she will be able to help me by pointing out where else in the statute or in other regulations is the time limit for the responsible authority to respond to the initial complaint. Because, in the provision it would be perfectly possible for a not very responsible authority to delay its response to the person to the point where the complaint became time barred under subsection (2)(a). I can find no requirement in this part for the delivery of the responsible authority’s response to the substance of the complaint. As I say, that may be elsewhere in the complaints procedure or the Bill, but I am not sure where and I hope that the Minister may be able to help.

Maria Eagle: We believe that the time limit reflects the fact that investigation by the commissioner, which is an administrative process rather than a judicial one, is most useful when engaged with matters that are reasonably fresh and still capable of worthwhile resolution. We consider that, in the vast majority of cases, the deadlines set out in clause 31 will give complainants sufficient time to raise grievances with the commissioner.
In setting a time limit, we have followed two main principles: first, that the commissioner will not act on complaints beyond a year; and, secondly, that the person must have given the prison or the body complained against a reasonable opportunity to deal with the substance of the complaint, which relates to the point that the hon. Member for Somerton and Frome made. I do not think that we define in part 4 or elsewhere in the Bill what that period should be; it would depend on the facts of each individual case. There will be some minor complaints to which it would be reasonable for the controlling authority to respond quickly and there will more complex complaints that take longer to deal with. “Reasonable” is one of those words that ought to be clear, one hopes, from the context of the complaint—its seriousness, when it was made and so on. That is subject to common sense.

David Heath: I accept that, but at the moment the provision gives comfort to the authority that it will have reasonable time to respond. I agree that common sense suggests that a complex complaint will take longer to investigate. However, the clause does not give any comfort to the complainant in cases where the responsible authority simply delays responding. For example, the responding authority may not respond for 12 months. It could respond on 31 December to a complaint made on 1 January. I assume that the commission would apply its discretion in those circumstances, but that complaint would then be time barred, however unreasonable the response of the authority. Reasonableness works both ways and there should be not only a reasonable period for investigation, but a reasonable expectation that the authority will respond in a timely way to a complaint that is made to it.

Maria Eagle: The hon. Gentleman has answered his own question in the sense that the person who has made the complaint is not getting a response. He still has three months from when he gets the response to refer the matter to the commissioner. If the controlling authority sits for 12 months without responding, that is a case in which the commissioner might well exercise the discretion that we have given him in clause 31 to act on complaints made outside the deadlines, if he has good reason to do so. If a delay was the fault of the body concerned, that might be a very good reason to deal with the complaint and I am sure that that is what would happen in practice.
This is not a formal judicial court procedure in which the limitation has to go into years. We think that the commissioner is dealing with situations in which the speedy resolution of complaints is best. We believe that the time limits set out in the clause are appropriate, but as a back-stop, the commissioner has the discretion to act outside those time limits if he feels that, in the circumstances, justice would not be served if the deadlines were adhered to strictly. On that basis, I hope that the hon. and learned Member for Harborough feels able to withdraw his amendment.

Edward Garnier: I did not propose the amendment thinking that it would make the Government change their mind, and I take into account the wording of subsection (3). However, at the moment the default setting would be governed by the periods of one year and three months. Therefore, the complainant would have to persuade the commissioner to do something to extend those periods in the right circumstances. I would prefer there to be a longer period for consideration in subsection (2)(a) and (c). The commissioner would therefore not have to use his discretion in subsection (3). Bearing in mind the sort of people who are likely to be making the complaints, there will be a need for the commissioner to exercise his power under subsection (3) rather more often than he might like. That is the simple reason why I want to change the periods set out in subsection (2).
I shall not press the amendment to a Division, but I urge the Government, if a lot of complaints are coming in out of time once the commissioner is up and running and he is spending far too much time dealing with out-of-time applications, to consider reconsidering the limitation periods. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 290, in clause 31, page 22, line 21, leave out ‘relevant person’ and insert ‘complainant’.
No. 291, in clause 31, page 22, line 38, at end insert—
‘(5) For the purpose of determining whether a part of a complaint is ineligible by virtue of this section, any reference in this section to a complaint may be read as including a reference to a part of a complaint.’.—[Maria Eagle.]

Clause 31, as amended, ordered to stand part of the Bill.

Clause 32

Treatment by Commissioner of complaints

Amendments made: No. 292, in clause 32, page 22, line 44, at end insert—
‘The duty under paragraph (b) is subject to the following provisions of this section.’.
No. 293, in clause 32, page 23, line 8, leave out subsections (4) to (6) and insert—
‘(4) The Commissioner shall reject the whole or any part of the complaint if—
(a) when considering the eligibility of the complaint under subsection (2), or
(b) at any time before the complaint has been fully dealt with,
the Commissioner decides that the complaint or part of the complaint is ineligible.
(5) The Commissioner need not decide that the whole or part of the complaint is ineligible so long as the Commissioner considers that it is or might be eligible.
(6) The Commissioner may (for any reason not relating to eligibility) decline to take, defer or stop taking action to deal with the whole or any part of the complaint.
(6A) Where the Commissioner—
(a) rejects part of a complaint, or
(b) declines to take or stops taking action to deal with part of a complaint,
the rest of the complaint shall be dealt with subsequently as if it were the complaint made by the complainant.
(6B) Where—
(a) the whole or any part of a complaint has been rejected, or
(b) a power under subsection (6) has been exercised,
the Commissioner may decide to re-open (and take action or further action under subsection (3) to deal with) the whole or any part of the complaint.
(6C) But a complaint or part of a complaint may not be re-opened unless the Commissioner considers that it is or might be eligible.
(6D) Where part of a complaint is re-opened it may be dealt with subsequently as if it were a separate complaint made by the complainant.’.—[Maria Eagle.]

Edward Garnier: I beg to move amendment No. 150, in clause 32, page 23, line 27, after ‘complainant’, insert ‘in writing’.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 151, in clause 32, page 23, line 30, after ‘Notification’, insert
‘to persons other than the complainant’.
No. 152, in clause 33, page 23, line 43, at beginning insert ‘not’.

Edward Garnier: The issue is simple: whether the commissioner, having reached a conclusion on a complaint, should make his decision known in writing. The Government seem happy that, in certain circumstances, he should give his answer in oral as opposed to written form. I suspect that when dealing with the sort of people who are likely to make complaints about the conduct of the system of offender management and prisons, a written answer would be preferable and more sensible, as it would prevent misunderstandings.
In amendment No. 150, I suggest that the commissioner should notify the complainant in writing with a brief statement of the reasons for his decision, and may notify such other persons as he sees fit. Amendment No. 151 deals with the notification of other people, which should be clarified so that subsection (8) states: “Notification to persons other than the complainant may be given orally.” That ties in with amendment No. 150. Amendment No. 152 deals with subsection (2), which states that the Commissioner may “make a report orally”. I suggest that it should state that the Commissioner may not make a report orally, which is consistent with my other amendments.
By and large, complainants will come from the category of convicted persons. We know about problems of illiteracy, intellectual capacity and drug habits and the difficulties that many offenders have in coming to terms with all sorts of things, and coming to terms with an oral response to a complaint will not necessarily be easy for them. The short answer is why not save us a lot of bother and uncertainty by requiring the commissioner to make the reports in writing? It may well be that, as a matter of practice, he will make the reports in writing, but there is no harm in putting it in the Bill.

Maria Eagle: Amendment No. 150 would require the commissioner to notify the complainant in writing if a complaint was rejected or a complaint investigation was deferred, stopped or reopened. Amendment No. 151 would only permit such notification to be made orally to persons other than the complainant. Amendment No. 152 would prevent the commissioner from making a report of a complaint investigation orally.
The hon. and learned Gentleman has set out his reasons for tabling the amendments. We consider that flexibility regarding the form of the report is needed, and we want discretion to be with the commissioner. He needs to be able to maximise his efficiency and the effectiveness of his responses by tailoring them to the needs of recipients and the circumstances of each case. We expect that in the majority of cases, as the hon. and learned Gentleman ended by saying, written notifications and reports will be the norm, but in some circumstances it may well be appropriate for the commissioner to relay such information orally.
For example, it is possible that some complaints relating to minor or straightforward matters could be resolved by a few brief telephone conversations between the complainant, the commissioner and the prison. In such circumstances, it might be unduly bureaucratic—the hon. and learned Gentleman is rarely accused of wanting that—and burdensome for the commissioner to have to produce a full written report.
We believe that the commissioner is best placed to make judgments and decisions about whether it would be appropriate for such reports or notifications to be made orally, based on the needs of each complainant and the circumstances of each case. However, we expect that the commissioner will produce and publish detailed guidance about the procedures for dealing with complaints, complainants and the bodies against whom the complaints are made. He should set out more fully his views in the guidance. I agree with the hon. and learned Gentleman that the majority of substantive complaints will have written responses or reports. I hope that, on the basis of my explanation, he will be persuaded to withdraw the amendment.

Edward Garnier: On that basis, I am persuaded. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 294, in clause 32, page 23, line 25, after ‘the’ insert ‘whole or any part of the’.
No. 295, in clause 32, page 23, line 26, leave out ‘(5)(a), (b) or (c)’ and insert ‘(6) or (6B)’.—[Maria Eagle.]

Clause 32, as amended, ordered to stand part of the Bill.

Clauses 33 and 34 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Khan.]

Adjourned accordingly at twenty-four minutes past Eight o’clock till Thursday 22 November at Nine o’clock.